SEVERANCE AND NON-COMPETITION AGREEMENT
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This Agreement is entered into by and between Xx. Xxxxxx X. Xxxxx,
Senior Vice President, Sales and Marketing (the "Executive") and Ipswich Savings
Bank (the "Bank") and shall be effective as of the 6th day of November, 2001
(the "Effective Date").
WHEREAS, the Board of Directors of the Bank desires to assure that the
Executive, in the Executive's capacity as an officer of the Bank, will consider
the prospect of a "change of control" (as defined in Section 1(A) below) of the
Bank in an objective manner; and
WHEREAS, the Executive desires to commit himself to serve the Bank to the best
of his ability;
NOW, THEREFORE, in consideration of the foregoing and the agreements of the
parties herein contained, the parties hereto agree as follows:
1. Consequences of Termination of the Executive's Employment Following Change of
Control. If, within three months following a "change of control" (as defined in
subsection (A) below), the Executive's employment is terminated by the Executive
following a reduction of the Executive's annual base compensation (other than a
reduction which is based on the Bank's financial performance and is similar to
the reduction made to the compensation provided to each other officer of the
Bank), the Executive (or the Executive's estate, if applicable) shall receive
such compensation as is provided to the Executive pursuant to subsection (C)
below. Similarly, if the Executive's employment is terminated without "cause"
(as defined in subsection (B) below) by the Bank within six months following a
"change of control" (as defined in subsection (A) below), the Executive (or the
Executive's estate, if applicable) shall receive such compensation as is
provided to the Executive pursuant to subsection (C) below.
(A) For the purposes of this Section "change of control" shall mean the
occurrence of any one or more of the following three events:
(1) after the Effective Date, any "person" (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934), other
than the Bank, becomes a "beneficial owner" (as such term is defined in Rule
13d-3 as promulgated under the Securities Exchange Act of 1934) directly or
indirectly of securities representing 25% or more of the total number of votes
that may be cast for the election of Directors of the Bank and two thirds of the
Board of Directors of the Bank (the "Board") has not consented to such event
prior to its occurrence or within sixty (60) days thereafter, provided that if
the consent occurs after the event, it shall only be valid for the purposes of
this paragraph (i) if a majority of the consenting Board is comprised of
Directors of the Bank who were Directors of the Bank immediately prior to the
event;
(2) within six months after a merger, consolidation or sale of
assets involving the Bank, or a contested election of a Bank Director, or any
combination of the foregoing, the individuals who were Directors of the Bank
immediately prior thereto shall cease to constitute a majority of the Board; or
(3) within six months after a tender offer or exchange offer
for voting securities of the Bank (other than by the Bank), the individuals who
were Directors of the Bank immediately prior thereto shall cease to constitute a
majority of the Board; or
(4) within six months after an acquisition in which the Bank
becomes a wholly-owned subsidiary of a bank holding company, individuals who
were Directors of the Bank immediately prior to such acquisition shall not
constitute a majority of the Board of Directors of the parent bank holding
company.
(B) For purposes of this Section 1, "cause" shall mean activities which
have had an adverse effect on the financial strength or stability of the Bank;
neglect of duties for which employed (other than on account of a medically
determinable disability which renders the Executive incapable of performing such
services); committing fraud, misappropriation or embezzlement in the performance
of duties as an employee of the Bank; conviction of a felony involving a crime
of moral turpitude; or engaging in conduct injurious to the Bank.
(C) If the Executive becomes entitled to receive compensation pursuant
to this Section, he shall receive a lump-sum payment from the Bank within 30
days of the termination of his employment in the amount of twelve (12) months
salary of the Executive (at the then applicable annual base salary rate of the
Executive, exclusive of bonuses or commissions).
2. 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.
3. Exclusivity Covenant; Non-Competition.
(A) Except with the prior written consent of the Board, the Executive
will not while in the employ of the Bank, undertake or engage in any other
employment occupation or business enterprise. Further, the Executive agrees not
to acquire, assume or participate in, directly or indirectly, any position,
investment or interest, in the areas where the Bank maintains banking offices,
adverse or antagonistic to the Bank, its business or prospects, financial or
otherwise, or take any action towards any of the foregoing, except for any
investment representing less than one percent (1%) of the voting shares of any
publicly-held corporation.
(B) During the Executive's employment by the Bank hereunder and during
a period of one year following the date of termination of his employment with
the Bank for any reason, the Executive will not, directly or indirectly whether
as owner, partner, shareholder, consultant, agent, employee, co-venturer or
otherwise, or through any Person (as defined below), compete in the Bank's
market area (defined as Essex County, Massachusetts) with the banking or any
other business conducted by the Bank or any Subsidiary during the period of his
employment hereunder, nor will he attempt to hire any employee of the Bank,
assist in such hiring by any other Person, encourage any such employee to
terminate his or her relationship with the Bank or encourage any customer to
conduct with any other Person any business or activity which such customer
conducts or could conduct with the Bank.
For purposes of this subsection, (i) the Executive shall not be deemed
to be competing with the Bank if he is employed outside of the Bank's market
area for a bank or corporation which has its headquarters outside of the Bank's
market area, even if such bank or corporation has a branch or office in the
Bank's market area and (ii) the term "Person" shall mean an individual, a
corporation, an association, a partnership, an estate, a trust and any other
entity or organization.
4. Assignment. This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of each of the parties hereto
and shall also bind and inure to the benefit of any successor or successors of
the Bank by reorganization, merger or consolidation and any assignee of all or
substantially all of its business and properties, but, except as to any such
successor or assignee of the Bank, neither this Agreement nor any rights or
benefits hereunder may be assigned by the Bank or by the Executive.
5. 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 Federal and state law.
6. Governing Law. This Agreement shall be construed in accordance with,
and governed for all purposes by, the laws of the Commonwealth of Massachusetts,
without regard to its principles of conflicts of laws.
7. Interpretation. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
8. Enforcement. Any legal expenses incurred by the Executive in enforcing
his rights hereunder (regardless of whether the provisions of this Agreement
have terminated) shall be paid by the Bank, provided that both the Executive
prevails on the merits of his claim or claims and the Bank's rights of appeal
with respect to such claim or claims have been exhausted or have otherwise
expired. The Bank shall pay such legal expenses (or reimburse the Executive, if
appropriate) within thirty (30) days after the later of the date on which the
conditions specified in the previous sentence are fulfilled or the date on which
the Executive submits evidence of such legal expenses to the Board.
9. Amendment and Waiver. This Agreement may not be amended, supplemented
or waived except by a writing signed by the party against which such amendment
or waiver is to be enforced. The waiver by any party of a breach of any
provision of this Agreement shall not operate to, or be construed as a waiver
of, any other breach of that provision nor as a waiver of any breach of another
provision.
10. Binding Effect. Subject to the provisions of Section 3 hereof, this
Agreement shall be binding on the successors and assigns of the parties hereto.
11. Notices. Any notices, requests, demands and other communications
provided for by the 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 President
(with a copy to Xxxxx Xxxxxxxxx Pratt, Foley, Xxxx & Eliot, Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000).
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which is an original but which shall together constitute
one and the same instrument.
IN WITNESS WHEREOF, the Bank and the Executive have executed this Agreement
under seal as of the date first set forth above.
IPSWICH SAVINGS BANK
By:/s/Xxxxx X. Xxxx, President
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Xxxxx X. Xxxx, President
Thereunto duly authorized
"EXECUTIVE"
By:/s/Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
