EXHIBIT 10.7
THE SANDWICH CO-OPERATIVE BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
____________________
1997 Amendment
____________________
WHEREAS, The Sandwich Co-operative Bank (the "Bank") has entered into a
Supplemental Executive Retirement Agreement with Xxxxxxxx X. Xxxxxx (the
"Agreement"); and
WHEREAS, the Board of Directors of the Bank deems it to be in the best
interest of the Bank to amend the Agreement to change the number of years of
service required for maximum benefits under the Agreement from 25 years to 20
years.
NOW, THEREFORE, pursuant to Section 14.01 of the Agreement, the Agreement
is hereby amended as follows, effective March 24, 1997 (date of Board Vote).
1. Section 2.01(b) of the Agreement shall be amended by replacing the
words "twenty-five (25) years (or 300 months)" with "twenty (20) years (or 240
months)" and the words "three hundred (300) months" with "two hundred forty
(240) months" wherever they appear.
2. Section 2.03 shall be amended by replacing the words "three hundred
(300) months" with the words "two hundred forty (240) months" wherever they
appear.
3. Nothing contained herein shall be held to alter, vary or affect any of
the terms, provisions, or conditions of the Agreement other than as stated
above.
WHEREFORE, on this 25th day of August, 1997, the Bank hereby executes this
1997
Amendment to the Agreement.
THE SANDWICH CO-OPERATIVE BANK
/s/ Xxxx Xxxxxxxx By /s/ Xxxx X. Xxxxxxxxx
-------------------------------- ------------------------------------
Witness Xxxx X. Xxxxxxxxx
Chairman of the Personnel Committee
August 25, 1997 Attest: /s/ Xxxxxxxx X. Xxxxx (Seal)
-------------------------------
Clerk
SANDWICH COOPERATIVE BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT
AGREEMENT
April 24, 1995
85020695
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT, made and entered into this 5th day of May, 1995 by and
between Sandwich Cooperative Bank, its subsidiaries and affiliates, (hereinafter
called the "Corporation") and Xxxxxxxx X. Xxxxxx (hereinafter called the
"Executive").
WITNESSETH:
WHEREAS, the Executive has been in the employ of the Corporation and/or its
subsidiaries and is now serving the Corporation as its Chief Executive Officer;
and,
WHEREAS, because of the Executive's experience, knowledge of affairs of the
Corporation, and reputation and contacts in the industry, the Corporation deems
the Executive's continued employment with the Corporation important for its
future growth; and, WHEREAS, it is the desire of the Corporation and in its best
interest that the Executive's service be retained;
WHEREAS, in order to induce the Executive to continue in the employ of the
Corporation and in recognition of his past service, the Board of Directors voted
on January 16, 1990 to authorize the Corporation to enter into an agreement
dated April 26, 1990 to provide him or his beneficiaries certain benefits; and,
WHEREAS, in order to amend the agreement dated April 26, 1990 and modify
specific provisions contained therein, the Board of Directors voted on January
23, 1995 to authorize the Corporation to restate the April 26, 1990 agreement
and enter into this Agreement with the terms and conditions hereinafter set
forth:
NOW, THEREFORE, in consideration of services performed in the past and to
be performed in the future as well as of the mutual promises and covenants
herein contained, it is agreed as follows:
1
ARTICLE ONE
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1.01 EMPLOYMENT. The Corporation may employ the Executive in such capacity
----------
as the Corporation may from time to time determine. Notwithstanding anything
contained herein, this Agreement is not an agreement of employment and nothing
herein shall restrict the Corporation concerning the terms and conditions of the
Executive's employment.
The benefits provided by this Agreement are not part of any salary reduction
plan or an arrangement deferring a bonus or a salary increase. The Executive has
no option to take any current payment or bonus in lieu of these salary
continuation benefits.
ARTICLE TWO
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2.01 NORMAL RETIREMENT BENEFITS.
--------------------------
(a) If the Executive shall continue in the employment of the Corporation
until the first of the month coincident with or next following his
sixtieth birthday (hereinafter referred to as the "Normal Retirement
Date"), he shall be entitled to a Normal Retirement Benefit, determined
as of the effective date of his actual retirement and continuing for
twenty (20) years, payable monthly, in the annual amount of sixty percent
(60%) of his Benefit Computation Base (hereinafter defined), reduced by
the sum of (1), (2) and (3) below.
1. Fifty percent (50%) of the Executive's (actual or projected)
annual primary social security retirement benefit projected as of
the Executive's social security normal retirement age based on
his Benefit Computation Base in effect on the date of termination
of the Executive's employment with the Corporation;
2. The annual amount of benefits payable to the Executive (or his
beneficiaries) at the Normal Retirement Date calculated on a
single life annuity basis from any qualified defined benefit
pension plan maintained and funded by the
2
Corporation, as such plan or plans may be amended or modified
from time to time;
3. The annual amount of benefits payable at the Normal Retirement
Date on a single life annuity basis attributable to the portion
of the account balances of the Executive arising from employer
contributions (but excluding the portion of such balances arising
from employee salary reduction and elective contributions) at the
date of determination, from the Corporation's Employee Stock
Ownership Plan ("ESOP"), 401(k) and other defined contribution
retirement plans maintained by the Corporation as of the date of
this agreement, or their successors, as such plan or plans may be
modified from time to time.
(b) If the Executive has (or will have) completed fewer than twenty-five (25)
years (or 300 months) of service with the Corporation as of his Normal
Retirement Date, then the Normal Retirement Benefit shall be the amount
determined by multiplying the amount which would otherwise be the Normal
Retirement Benefit under paragraph (a) above, by a fraction, not to
exceed one (1), the numerator of which is the actual number of months of
the Executive's employment with the Corporation, and the denominator of
which is three hundred (300) months.
2.02 BENEFIT COMPUTATION BASE. The Executive's Benefit Computation Base
------------------------
shall be the average of the Executive's annual base salary (including any salary
reduction amounts pursuant to Sections 401(k) or 125 of the Internal Revenue
Code of 1986, as amended) paid during the thirty-six (36) consecutive calendar
months during the Executive's period of employment by the Corporation in which
such compensation is the highest.
2.03 ACCRUED BENEFIT. As used herein for the purposes of Section 3.01, 4.01,
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5.01, or 5.02, the term "Accrued Benefit" shall mean:
3
1. The benefit amount the Executive would be entitled to under
Section 2. 0 1, commencing at the Executive's Normal Retirement
Date except that in the event of (a) death, (b) disability, (c)
termination of employment, (d) early retirement, or (e) merger,
consolidation or sale (in the event of (d), as modified by
Section 10.1 hereof as the case may be, the benefit to which the
Executive will be entitled shall be determined by multiplying the
Normal Retirement Benefit amount by a fraction, not to exceed one
(1), the numerator of which is the actual number of months of the
Executive's employment with the Corporation, and the denominator
of which is three hundred (300) months.
2. If the Executive terminates employment prior to his Normal
Retirement Date, in calculating his Accrued Benefit, (i) the
offset for primary social security retirement benefit shall be
calculated on the basis of the amount projected to be payable at
the Executive's social security normal retirement age assuming
continued earnings by the Executive at the rate in effect at
termination of employment until the Executive's social security
normal retirement age; (ii) the offset for any qualified defined
benefit plan shall be calculated on the basis of the Executive's
accrued benefit in said plan upon termination of employment
projected to be payable at the Executive's Normal Retirement
Date, and (iii) the offset for any benefits arising from employer
contributions attributable to the account balances of the
Executive arising from the Corporation's ESOP, 401(k) plan or any
other defined contribution retirement plan shall also be
calculated on the basis of the Executive's accrued benefit in
such plan(s) upon termination of employment projected to be
payable at the Executive's Normal Retirement Date.
4
2.04 OPTIONAL FORMS OF PAYMENT. In lieu of the twenty (20) year certain
-------------------------
payments provided in Section 2.01 above, or whenever an Accrued Benefit is
payable under Section 4.01, 5.01 (5.02 or 10.01) of this Agreement, the
Executive may elect in the calendar year prior to the calendar year in which
payments are to begin, any optional form of payment which shall be the actuarial
equivalent (factors defined in the Corporation's qualified defined benefit
pension plan) of the said twenty (20) year certain payments. The optional form
of payment may be a lump sum payment and any optional form of annuity payment
which is provided to the Executive under the terms of the Corporation's
qualified defined benefit pension plan.
2.05 VESTING. Anything to the contrary in this Agreement notwithstanding, the
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Executive shall be entitled to one hundred percent (100%) of any benefit payable
under this Agreement under any one or more of Sections 2.01, 3.01, 4.01, 5.01,
5.02, or 10.01 at the date on which his entitlement to such benefit shall be
determined commencing with his original date of hire with the Corporation.
ARTICLE THREE
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3.01 DEATH OF EXECUTIVE.
------------------
(a) If the Executive dies while employed by the Corporation but prior to the
commencement of the payment of benefits under Section 2.01, 4.01, 5.01,
5.02, or 10.01, the Corporation will pay to the Executive's named
beneficiaries, for a period of twenty (20) years certain commencing on
the first day of the month next following the delivery to the Corporation
of a death certificate, a total annual amount equal to the Accrued
Benefit earned by the Executive as of the date of death.
(b) If the Executive dies following the commencement of the payment of
benefits under Section 2.01, 4.01, 5.01, 5.02, or 10.01, such payment of
benefits shall continue to the named beneficiaries of the Executive until
all such benefits have been paid.
5
(c) If the Executive dies following the termination of his employment with
the Corporation and prior to the commencement of the payment of benefits
under Section 2.01, 4.01, 5.01, 5.02, or 10.01, the Corporation shall pay
to the Executive's named beneficiaries an annual benefit which shall be
the Executive's Accrued Benefit as of the date of his termination of his
employment. Such benefits shall be payable monthly, commencing on the
first day of the month next following the Normal Retirement Date, or any
date prior to the Normal Retirement Date approved by the Corporation, and
continuing for twenty (20) years.
3.02 BENEFICIARIES. The Executive may designate, in writing to the
-------------
Corporation, one or more beneficiaries. If no beneficiary is so named or if no
named beneficiary is living at the time a payment is due, benefit payments shall
be made, when due, to the Executive's estate.
ARTICLE FOUR
------------
4.01 DISABILITY PRIOR TO RETIREMENT. In the event the Executive shall become
------------------------------
disabled, mentally or physically, which disability prevents him from performing
the material aspects of his duties, the Corporation will pay no disability
benefits hereunder. Disability benefits (if any) will be paid to the Executive
through such insurance programs as may be sponsored by the Corporation. Upon the
later of termination of such other disability benefits (if any), or the
Executive's attainment of the Normal Retirement Date, the Executive shall
commence receiving payment of his Accrued Benefit determined as of the date of
the disability, but with additional service credited as if the Executive were
working until the earlier of his Normal Retirement Date or Termination of
Service Date or Discharge Date as determined by the Corporation. The Accrued
Benefit shall be paid monthly, for twenty (20) years certain commencing on the
first day of the month following the later of the termination of such benefits
or the Normal Retirement Date, or in the manner provided in Section 2.04.
6
4.02 RE-EMPLOYMENT FOLLOWING DISABILITY. In the event the Executive returns
----------------------------------
to work with the Corporation after terminating employment because of disability,
this Agreement shall continue in full force and effect as though such disability
had not occurred (including crediting the Executive with all service with
Corporation as if he were working).
ARTICLE FIVE
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5.01 EARLY RETIREMENT, TERMINATION OF SERVICE OR DISCHARGE. Except to the
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extent otherwise provided in Sections 5.03 and 5.04, in the event that the
Executive's employment with the Corporation is terminated, voluntarily or
involuntarily, before the Executive attains the Normal Retirement Date, for
reasons other than death or disability, the Executive shall be entitled to an
annual benefit, which shall be his Accrued Benefit as of the date of his
termination of employment. Such benefit shall be payable monthly, commencing on
the first day of the month next following the Normal Retirement Date and
continuing for twenty (20) years. The Executive may elect to receive such
benefit provided in this Section 5.01 prior to the Normal Retirement Date at any
date between age 55 and the Normal Retirement Date. Such early commencement will
result in an early commencement reduction provided under the terms of the
Corporation's Qualified defined benefit pension plan for each month payment
commences prior to the Normal Retirement Date.
5.02 OPTIONAL FORMS OF PAYMENT. In lieu of the twenty (20) year certain
-------------------------
payments provided in Section 5.01, the benefits payable under such Sections may
be payable in the manner provided in Section 2.04.
5.03 EMPLOYMENT BY COMPETITION. Anything to the contrary in this Agreement
-------------------------
notwithstanding, in the event that either (a) prior to the Normal Retirement
Date, the Executive's employment with the Corporation, shall have terminated for
whatever reason or (b) after he shall have begun to receive benefits under this
Agreement, the Executive will not
7
forfeit any payments which might otherwise be due and payable hereunder should
the Executive become employed by a company in competition with the Corporation
5.04 FORFEITURE. Anything to the contrary in this Agreement notwithstanding,
----------
benefits under this Agreement shall be immediately forfeited and all rights of
the Executive and his beneficiaries hereunder shall become null and void, if the
Executive's employment with the Corporation is terminated for cause. For this
purpose, a termination for "Cause" shall mean conviction by a court of law for
fraud, misappropriation or embezzlement.
5.05 AVAILABILITY TO CONSULT. From and after prior commencement of receipt
-----------------------
of benefits pursuant to this Agreement; the Executive will keep himself
available to consult with, and respond to inquiries from, the Corporation
relating to its business affairs, at reasonable time(s) and to reasonable
extent.
ARTICLE SIX
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6.01 INTEREST. Any payment that is required to be made hereunder that is
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delayed beyond the date specified in this agreement shall bear interest at a
variable rate which shall be the rate of interest on one year U.S. Treasury
Bills determined at the first auction of each calendar year or part thereof
during the period of which interest is to be applied to any obligation
hereunder.
ARTICLE SEVEN
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7.01 ALIENABILITY. Neither the Executive, nor any beneficiary under this
------------
Agreement shall have any power or right to transfer, assign, anticipate,
hypothecate, mortgage, commute, modify, or otherwise encumber in advance any of
the benefits payable hereunder, nor shall
8
any of said benefits be subject to seizure for the payment of any debts,
judgments, alimony or separate maintenance, owed by the Executive or his
beneficiary or any of them, or be transferable by operation of law in the event
of bankruptcy, or otherwise.
ARTICLE EIGHT
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8.01 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 Corporation may have or hereafter have.
ARTICLE NINE
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9.01 FUNDING.
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(a) The Corporation reserves the right at its sole and exclusive discretion
to insure or otherwise provide for the obligations of the Corporation
undertaken by this Agreement or to refrain from same, and to determine
the extent, nature and method thereof, including the establishment of one
or more trusts. Should the Corporation elect to insure this Agreement, in
whole or in part, through the medium of insurance or annuities, or both,
the Corporation shall be the owner and beneficiary of the policy or
annuity. At no time shall the Executive be deemed to have any right,
title or interest in or to any specified asset or assets of the
Corporation, or any trust or escrow arrangement, including, but not by
way of restriction, any insurance or annuity contracts or the proceeds
therefrom.
(b) Any such policy, contract or asset shall not in any way be considered to
be security for the performance of the obligations of this Agreement.
9
(c) If the Corporation purchases a life insurance or annuity policy on the
life of the Executive, the Executive agrees to sign any papers that may
be required for that purpose and to undergo any medical examination or
tests (at the Corporation's expense) which may be necessary, and
generally cooperate with the Corporation in securing such policy.
(d) To the extent the Executive acquires a right to receive benefits under
this Agreement, such right shall be equivalent to the right of an
unsecured general creditor of the Corporation.
ARTICLE TEN
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10.01 REORGANIZATION. The Corporation shall not merge or consolidate into or
--------------
with another corporation if such merger or consolidation shall result in the
other corporation being the survivor corporation, nor shall it sell
substantially all of its assets to another corporation, firm or person, unless
and until:
(a) The Executive and such other corporation, firm or person agree that the
Executive shall continue in the employ of the succeeding, continuing or
acquiring corporation, firm or person and such other corporation, firm or
person agrees in writing without further qualification to assume and
discharge the obligations of the Corporation under this Agreement, or,
(b) If the Executive and such corporation, firm or person do not agree that
the Executive shall continue in the employ of such corporation, firm or
person, or such corporation, firm or person does not so agree to assume
and discharge such obligations, the Corporation shall pay to the
Executive, in one lump sum, his Accrued Benefit as of the date of such
merger, consolidation or sale. AR calculations of the Accrued Benefit for
purposes of this Section 10.1(b), shall further be discounted to present
value in accordance with the actuarial tables used in the Corporation's
defined benefit pension plan.
10
Upon the occurrence of any such event and the written unqualified assumption of
the obligations of the Corporation by such successor corporation, firm or
person, the term "Corporation" as used in this Agreement shall be deemed to
refer to such successor or survivor corporation, firm or person,
ARTICLE ELEVEN
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11.01 BENEFITS AND BURDENS. This Agreement shall be binding upon and inure to
--------------------
the benefit of the Executive and his personal representatives, the Corporation,
and any successor organization which shall succeed to substantially all of the
Corporation's assets and business without regard to the form of such succession.
11.02 CORPORATION. As used in this Agreement, Corporation shall mean the
-----------
Sandwich Cooperative Bank, a Massachusetts Corporation, and any affiliated
entity, successor organization, parent, subsidiary or holding company.
ARTICLE TWELVE
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12.01 COMMUNICATIONS. 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 Corporation:
c/o Chairman of the Board
Sandwich Cooperative Bank
000 Xxx Xxxx'x Xxxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
11
To the Executive:
Xxxxxxxx X. Xxxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Each party shall have the right by written notice to change the place to which
any notice may be addressed.
ARTICLE THIRTEEN
----------------
13.01 CLAIMS PROCEDURE. In the event that benefits under this Agreement are
----------------
not paid to the Executive (or his beneficiary in the case of the Executive's
death), and such person feels entitled to receive them, a claim shall be made in
writing to the Corporation within sixty (60) days after written notice from the
Corporation to the Executive or his beneficiary or personal representative that
payments are not being made or are not to be made under this Agreement. Such
claim shall be reviewed by the Corporation. If the claim is approved or denied,
in full or in part, the Corporation shall provide a written notice of approval
or denial within sixty (60) days from the date of receipt of the claim setting
forth the specific reason for denial, specific reference to the provision of
this Agreement upon which the denial is based, and any additional material or
information necessary to perfect the claim if any. Also, such written notice
shall indicate the steps to be taken if a review of the denial is desired. If a
claim is denied (a claim shall be deemed denied if the Corporation does not take
action within the aforesaid sixty (60) day period) and a review is desired, the
Executive (or beneficiary in the case of the Executive's death), shall notify
the Corporation in writing within twenty (20) days. In requesting a review, the
Executive or his beneficiary may review this Agreement or any document relating
to it and submit any written issues and comments he or she may feel appropriate.
In its sole discretion the Corporation shall then review the claim and provide a
written decision within sixty (60) days. This decision likewise shall state the
12
specific reasons for the decision and shall include reference to specific
provisions of this Agreement on which the decision is based.
Any decision of the Corporation shall not be binding on the Executive, his
personal representative, or any beneficiary without consent, nor shall it
preclude further action by the Executive, his personal representatives or
beneficiary.
13.02 ARBITRATION. All claims, disputes and other matters in question between
-----------
the parties hereto arising out of or relating to this Agreement or the breach
thereof may be decided by arbitration with the express mutual consent of the
Executive and the Corporation in accordance with the Rules of the American
Arbitration Association then obtaining, subject to the notations and
restrictions stated below. This Agreement to arbitrate and any other agreement
or consent to arbitrate entered into in accordance herewith will be specifically
enforceable under the prevailing arbitration law of any court having
jurisdiction.
Notice of demand for arbitration must be filed in writing with the other parties
to this Agreement and with the American Arbitration Association. The demand must
be made within a reasonable time after the claim, dispute or other matter in
question has arisen. In no event may the demand for arbitration be made after
institution of legal or equitable proceedings based on such claim, dispute or
other matter in question would be barred by the applicable statute of
limitations.
The award rendered by the arbitrators will be final, not subject to appeal
and judgment may be entered upon it in any court having jurisdiction thereof.
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ARTICLE FOURTEEN
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14.01 ENTIRE AGREEMENT. This instrument may be altered or amended only by
----------------
written agreement signed by the parties hereto.
14.02 JURISDICTION. The parties, terms and conditions of this Agreement are
------------
subject to and shall be governed by the laws of the Commonwealth of
Massachusetts.
14.03 GENDER. Any reference in this Agreement to the masculine shall be deemed
------
to include the feminine where the context so requires.
14.04 OPERATION OF LAW ON CORPORATION'S OBLIGATIONS. In the event that any
---------------------------------------------
governmental entity promulgates any statute, rule, regulation, policy or order
which restricts or prohibits the Corporation from making payments to the
Executive under this Agreement, then the Corporation's obligations to make
payments to the Executive (or his beneficiary) hereunder shall terminate or be
restricted or suspended (consistent with such law or binding regulation, policy
or order) for so long as such restriction or prohibition applies to the
Corporation. Nothing in this Agreement is intended to require or shall be
construed as requiring the Corporation to do or fail to do any act in violation
of any applicable law or binding regulation, policy or order.
14
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed by its duly authorized officer and its Corporate Seal affixed at
Sandwich, Massachusetts the day and year first above written.
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SANDWICH COOPERATIVE BANK
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxx X. Xxxxxxxxx
----------------------------------- ---------------------------------
Witness Chairman of the Personnel Committee
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxxxxxx X. Xxxxxx
----------------------------------- ---------------------------------
Witness Xxxxxxxx X. Xxxxxx, Chief Executive
Officer
15
THE SANDWICH CO-OPERATIVE BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
____________________
1997 Amendment
____________________
WHEREAS, The Sandwich Co-operative Bank (the "Bank") has entered into a
Supplemental Executive Retirement Agreement with Xxxx X. Xxxxxx (the
"Agreement"); and
WHEREAS, the Board of Directors of the Bank deems it to be in the best
interest of the Bank to amend the Agreement to change the number of years of
service required for maximum benefits under the Agreement from 25 years to 20
years.
NOW, THEREFORE, pursuant to Section 14.01 of the Agreement, the Agreement
is hereby amended as follows, effective March 24, 1997 (date of Board Vote).
1. Section 2.01(b) of the Agreement shall be amended by replacing the
words "twenty-five (25) years (or 300 months)" with "twenty (20) years (or 240
months)" and the words "three hundred (300) months" with "two hundred forty
(240) months" wherever they appear.
2. Section 2.03 shall be amended by replacing the words "three hundred
(300) months" with the words "two hundred forty (240) months" wherever they
appear.
3. Nothing contained herein shall be held to alter, vary or affect any
of the terms, provisions, or conditions of the Agreement other than as stated
above.
WHEREFORE, on this 25th day of August, 1997, the Bank hereby executes this
1997 Amendment to the Agreement.
THE SANDWICH CO-OPERATIVE BANK
/s/ Xxxx Xxxxxxxx By /s/ Xxxx X. Xxxxxxxxx
---------------------------------- ------------------------------
Witness Xxxx X. Xxxxxxxxx
Chairman of the Personnel Committee
__________________________________ Attest: /s/ Xxxxxxxx X. Xxxxx (Seal)
-----------------------------
Clerk
SANDWICH COOPERATIVE BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT
AGREEMENT
April 24, 1995
95041095
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT, made and entered into this 5th day of May, 1995 by and
between Sandwich Cooperative Bank, its subsidiaries and affiliates, (hereinafter
called the "Corporation") and Xxxx X. Xxxxxx (hereinafter called the
"Executive").
WITNESSETH:
WHEREAS, the Executive has been in the employ of the Corporation and/or its
subsidiaries and is now serving the Corporation as its Senior Vice President;
and,
WHEREAS, because of the Executive's experience, knowledge of affairs of the
Corporation, and reputation and contacts in the industry, the Corporation deems
the Executive's continued employment with the Corporation important for its
future growth; and,
WHEREAS, it is the desire of the Corporation and in its best interest that
the Executive's service be retained;
WHEREAS, in order to induce the Executive to continue in the employ of the
Corporation and in recognition of his past service, the Board of Directors voted
on January 16, 1990 to authorize the Corporation to enter into an agreement
dated April 26, 1990 to provide him or his beneficiaries certain benefits; and,
WHEREAS, in order to amend the agreement dated April 26, 1990 and modify
specific provisions contained therein, the Board of Directors voted on January
23, 1995 to authorize the Corporation to restate the April 26, 1990 agreement
and enter into this Agreement with the terms and conditions hereinafter set
forth:
NOW, THEREFORE, in consideration of services performed in the past and to
be performed in the future as well as of the mutual promises and covenants
herein contained, it is agreed as follows:
1
ARTICLE ONE
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1.01 EMPLOYMENT. The Corporation may employ the Executive in such capacity
----------
as the Corporation may from time to time determine. Notwithstanding anything
contained herein, this Agreement is not an agreement of employment and nothing
herein shall restrict the Corporation concerning the terms and conditions of the
Executive's employment.
The benefits provided by this Agreement are not part of any salary reduction
plan or an arrangement deferring a bonus or a salary increase. The Executive has
no option to take any current payment or bonus in lieu of these salary
continuation benefits.
ARTICLE TWO
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2.01 NORMAL RETIREMENT BENEFITS.
--------------------------
(a) If the Executive shall continue in the employment of the Corporation
until the first of the month coincident with or next following his
sixtieth birthday (hereinafter referred to as the "Normal Retirement
Date"), he shall be entitled to a Normal Retirement Benefit, determined
as of the effective date of his actual retirement and continuing for
twenty (20) years, payable monthly, in the annual amount of sixty percent
(60%) of his Benefit Computation Base (hereinafter defined), reduced by
the sum of (1), (2) and (3) below.
1. Fifty percent (50%) of the Executive's (actual or projected)
annual primary social security retirement benefit projected as of
the Executive's social security normal retirement age based on
his Benefit Computation Base in effect on the date of termination
of the Executive's employment with the Corporation;
2. The annual amount of benefits payable to the Executive (or his
beneficiaries) at the Normal Retirement Date calculated on a
single life annuity basis from any qualified defined benefit
pension plan maintained and funded by the
2
Corporation, as such plan or plans may be amended or modified
from time to time;
3. The annual amount of benefits payable at the Normal Retirement
Date on a single life annuity basis attributable to the portion
of the account balances of the Executive arising from employer
contributions (but excluding the portion of such balances arising
from employee salary reduction and elective contributions) at the
date of determination, from the Corporation's Employee Stock
Ownership Plan ("ESOP"), 401(k) and other defined contribution
retirement plans maintained by the Corporation as of the date of
this agreement, or their successors, as such plan or plans may be
modified from time to time.
(b) If the Executive has (or will have) completed fewer than twenty-five (25)
years (or 300 months) of service with the Corporation as of his Normal
Retirement Date, then the Normal Retirement Benefit shall be the amount
determined by multiplying the amount which would otherwise be the Normal
Retirement Benefit under paragraph (a) above, by a fraction, not to
exceed one (1), the numerator of which is the actual number of months of
the Executive's employment with the Corporation, and the denominator of
which is three hundred (300) months.
2.02 BENEFIT COMPUTATION BASE. The Executive's Benefit Computation Base
------------------------
shall be the average of the Executive's annual base salary (including any salary
reduction amounts pursuant to Sections 401(k) or 125 of the Internal Revenue
Code of 1986, as amended) paid during the thirty-six (36) consecutive calendar
months during the Executive's period of employment by the Corporation in which
such compensation is the highest.
2.03 ACCRUED BENEFIT. As used herein for the purposes of Section 3.01, 4.01,
---------------
5.01, or 5.02, the term "Accrued Benefit" shall mean:
3
1. The benefit amount the Executive would be entitled to under Section 2.01,
commencing at the Executive's Normal Retirement Date except that in the
event of (a) death, (b) disability, (c) termination of employment, (d)
early retirement, or (e) merger, consolidation or sale (in the event of
(d), as modified by Section 10.1 hereof as the case may be, the benefit to
which the Executive will be entitled shall be determined by multiplying the
Normal Retirement Benefit amount by a fraction, not to exceed one (1), the
numerator of which is the actual number of months of the Executive's
employment with the Corporation, and the denominator of which is three
hundred (300) months.
2. If the Executive terminates employment prior to his Normal Retirement Date,
in calculating his Accrued Benefit, (i) the offset for primary social
security retirement benefit shall be calculated on the basis of the amount
projected to be payable at the Executive's social security normal
retirement age assuming continued earnings by the Executive at the rate in
effect at termination of employment until the Executive's social security
normal retirement age; (ii) the offset for any qualified defined benefit
plan shall be calculated on the basis of the Executive's accrued benefit in
said plan upon termination of employment projected to be payable at the
Executive's Normal Retirement Date, and (iii) the offset for any benefits
arising from employer contributions attributable to the account balances of
the Executive arising from the Corporation's ESOP, 401(k) plan or any other
defined contribution retirement plan shall also be calculated on the basis
of the Executive's accrued benefit in such plan(s) upon termination of
employment projected to be payable at the Executive's Normal Retirement
Date.
4
2.04 OPTIONAL FORMS OF PAYMENT. In lieu of the twenty (20) year certain
-------------------------
payments provided in Section 2.01 above, or whenever an Accrued Benefit is
payable under Section 4.01, 5.01 (5.02 or 10.01) of this Agreement, the
Executive may elect in the calendar year prior to the calendar year in which
payments are to begin, any optional form of payment which shall be the actuarial
equivalent (factors defined in the Corporation's qualified defined benefit
pension plan) of the said twenty (20) year certain payments. The optional form
of payment may be a lump sum payment and any optional form of annuity payment
which is provided to the Executive under the terms of the Corporation's
qualified defined benefit pension plan.
2.05 VESTING. Anything to the contrary in this Agreement notwithstanding, the
-------
Executive shall be entitled to one hundred percent (100%) of any benefit payable
under this Agreement under any one or more of Sections 2.01, 3.01, 4.01, 5.01,
5.02, or 10.01 at the date on which his entitlement to such benefit shall be
determined commencing with his original date of hire with the Corporation.
ARTICLE THREE
-------------
3.01 DEATH OF EXECUTIVE.
------------------
(a) If the Executive dies while employed by the Corporation but prior to the
commencement of the payment of benefits under Section 2.01, 4.01, 5.01,
5.02, or 10.01, the Corporation will pay to the Executive's named
beneficiaries, for a period of twenty (20) years certain commencing on the
first day of the month next following the delivery to the Corporation of a
death certificate, a total annual amount equal to the Accrued Benefit
earned by the Executive as of the date of death.
(b) If the Executive dies following the commencement of the payment of benefits
under Section 2.01, 4.01, 5.01, 5.02, or 10.01, such payment of benefits
shall continue to the named beneficiaries of the Executive until all such
benefits have been paid.
5
(c) If the Executive dies following the termination of his employment with
the Corporation and prior to the commencement of the payment of benefits
under Section 2.01, 4.01, 5.01, 5.02, or 10.01, the Corporation shall pay
to the Executive's named beneficiaries an annual benefit which shall be the
Executive's Accrued Benefit as of the date of his termination of his
employment. Such benefits shall be payable monthly, commencing on the
first day of the month next following the Normal Retirement Date, or any
date prior to the Normal Retirement Date approved by the Corporation, and
continuing for twenty (20) years.
3.02 BENEFICIARIES. The Executive may designate, in writing to the Corporation,
-------------
one or more beneficiaries. If no beneficiary is so named or if no named
beneficiary is living at the time a payment is due, benefit payments shall be
made, when due, to the Executive's estate.
ARTICLE FOUR
------------
4.01 DISABILITY PRIOR TO RETIREMENT. In the event the Executive shall become
------------------------------
disabled, mentally or physically, which disability prevents him from performing
the material aspects of his duties, the Corporation will pay no disability
benefits hereunder. Disability benefits (if any) will be paid to the Executive
through such insurance programs as may be sponsored by the Corporation. Upon the
later of termination of such other disability benefits (if any), or the
Executive's attainment of the Normal Retirement Date, the Executive shall
commence receiving payment of his Accrued Benefit determined as of the date of
the disability, but with additional service credited as if the Executive were
working until the earlier of his Normal Retirement Date or Termination of
Service Date or Discharge Date as determined by the Corporation. The Accrued
Benefit shall be paid monthly, for twenty (20) years certain commencing on the
first day of the month following the later of the termination of such benefits
or the Normal Retirement Date, or in the manner provided in Section 2.04.
6
4.02 RE-EMPLOYMENT FOLLOWING DISABILITY. In the event the Executive returns to
----------------------------------
work with the Corporation after terminating employment because of disability,
this Agreement shall continue in full force and effect as though such disability
had not occurred (including crediting the Executive with all service with
Corporation as if he were working).
ARTICLE FIVE
------------
5.01 EARLY RETIREMENT, TERMINATION OF SERVICE OR DISCHARGE. Except to the
-----------------------------------------------------
extent otherwise provided in Sections 5.03 and 5.04, in the event that the
Executive's employment with the Corporation is terminated, voluntarily or
involuntarily, before the Executive attains the Normal Retirement Date, for
reasons other than death or disability, the Executive shall be entitled to an
annual benefit, which shall be his Accrued Benefit as of the date of his
termination of employment. Such benefit shall be payable monthly, commencing on
the first day of the month next following the Normal Retirement Date and
continuing for twenty (20) years. The Executive may elect to receive such
benefit provided in this Section 5.01 prior to the Normal Retirement Date at any
date between age 55 and the Normal Retirement Date. Such early commencement will
result in an early commencement reduction provided under the terms of the
Corporation's Qualified defined benefit pension plan for each month payment
commences prior to the Normal Retirement Date.
5.02 OPTIONAL FORMS OF PAYMENT. In lieu of the twenty (20) year certain
-------------------------
payments provided in Section 5.01, the benefits payable under such Sections may
be payable in the manner provided in Section 2.04.
5.03 EMPLOYMENT BY COMPETITION. Anything to the contrary in this Agreement
-------------------------
notwithstanding, in the event that either (a) prior to the Normal Retirement
Date, the Executive's employment with the Corporation, shall have terminated for
whatever reason or (b) after he shall have begun to receive benefits under this
Agreement, the Executive will not
7
forfeit any payments which might otherwise be due and payable hereunder
should the Executive become employed by a company in competition with the
Corporation
5.04 FORFEITURE. Anything to the contrary in this Agreement notwithstanding,
----------
benefits under this Agreement shall be immediately forfeited and all rights of
the Executive and his beneficiaries hereunder shall become null and void, if the
Executive's employment with the Corporation is terminated for cause. For this
purpose, a termination for "Cause" shall mean conviction by a court of law for
fraud, misappropriation or embezzlement.
5.05 AVAILABILITY TO CONSULT. From and after prior commencement of receipt
-----------------------
of benefits pursuant to this Agreement; the Executive will keep himself
available to consult with, and respond to inquiries from, the Corporation
relating to its business affairs, at reasonable time(s) and to reasonable
extent.
ARTICLE SIX
-----------
6.01 INTEREST. Any payment that is required to be made hereunder that is
--------
delayed beyond the date specified in this agreement shall bear interest at a
variable rate which shall be the rate of interest on one year U.S. Treasury
Bills determined at the first auction of each calendar year or part thereof
during the period of which interest is to be applied to any obligation
hereunder.
ARTICLE SEVEN
-------------
7.01 ALIENABILITY. Neither the Executive, nor any beneficiary under this
------------
Agreement shall have any power or right to transfer, assign, anticipate,
hypothecate, mortgage, commute, modify, or otherwise encumber in advance any of
the benefits payable hereunder, nor shall
8
any of said benefits be subject to seizure for the payment of any debts,
judgments, alimony or separate maintenance, owed by the Executive or his
beneficiary or any of them, or be transferable by operation of law in the event
of bankruptcy, or otherwise.
ARTICLE EIGHT
-------------
8.01 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 Corporation may have or hereafter have.
ARTICLE NINE
------------
9.01 FUNDING.
-------
(a) The Corporation reserves the right at its sole and exclusive discretion to
insure or otherwise provide for the obligations of the Corporation
undertaken by this Agreement or to refrain from same, and to determine the
extent, nature and method thereof, including the establishment of one or
more trusts. Should the Corporation elect to insure this Agreement, in
whole or in part, through the medium of insurance or annuities, or both,
the Corporation shall be the owner and beneficiary of the policy or
annuity. At no time shall the Executive be deemed to have any right, title
or interest in or to any specified asset or assets of the Corporation, or
any trust or escrow arrangement, including, but not by way of restriction,
any insurance or annuity contracts or the proceeds therefrom.
(b) Any such policy, contract or asset shall not in any way be considered to be
security for the performance of the obligations of this Agreement.
9
(c) If the Corporation purchases a life insurance or annuity policy on the life
of the Executive, the Executive agrees to sign any papers that may be
required for that purpose and to undergo any medical examination or tests
(at the Corporation's expense) which may be necessary, and generally
cooperate with the Corporation in securing such policy.
(d) To the extent the Executive acquires a right to receive benefits under
this Agreement, such right shall be equivalent to the right of an unsecured
general creditor of the Corporation.
ARTICLE TEN
-----------
10.01 REORGANIZATION. The Corporation shall not merge or consolidate into
--------------
or with another corporation if such merger or consolidation shall result in the
other corporation being the survivor corporation, nor shall it sell
substantially all of its assets to another corporation, firm or person, unless
and until:
(a) The Executive and such other corporation, firm or person agree that the
Executive shall continue in the employ of the succeeding, continuing or
acquiring corporation, firm or person and such other corporation, firm or
person agrees in writing without further qualification to assume and
discharge the obligations of the Corporation under this Agreement, or,
(b) If the Executive and such corporation, firm or person do not agree that
the Executive shall continue in the employ of such corporation, firm or
person, or such corporation, firm or person does not so agree to assume and
discharge such obligations, the Corporation shall pay to the Executive, in
one lump sum, his Accrued Benefit as of the date of such merger,
consolidation or sale. AR calculations of the Accrued Benefit for purposes
of this Section 10.1(b), shall further be discounted to present value in
accordance with the actuarial tables used in the Corporation's defined
benefit pension plan.
10
Upon the occurrence of any such event and the written unqualified assumption of
the obligations of the Corporation by such successor corporation, firm or
person, the term "Corporation" as used in this Agreement shall be deemed to
refer to such successor or survivor corporation, firm or person,
ARTICLE ELEVEN
--------------
11.01 BENEFITS AND BURDENS. This Agreement shall be binding upon and inure
--------------------
to the benefit of the Executive and his personal representatives, the
Corporation, and any successor organization which shall succeed to substantially
all of the Corporation's assets and business without regard to the form of such
succession.
11.02 CORPORATION. As used in this Agreement, Corporation shall mean the
-----------
Sandwich Cooperative Bank, a Massachusetts Corporation, and any affiliated
entity, successor organization, parent, subsidiary or holding company.
ARTICLE TWELVE
--------------
12.01 COMMUNICATIONS. 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 Corporation:
c/o Chairman of the Board
Sandwich Cooperative Bank
000 Xxx Xxxx'x Xxxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
11
To the Executive:
Xxxx X. Xxxxxx
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Each party shall have the right by written notice to change the place to which
any notice may be addressed.
ARTICLE THIRTEEN
----------------
13.01 CLAIMS PROCEDURE. In the event that benefits under this Agreement are
----------------
not paid to the Executive (or his beneficiary in the case of the Executive's
death), and such person feels entitled to receive them, a claim shall be made in
writing to the Corporation within sixty (60) days after written notice from the
Corporation to the Executive or his beneficiary or personal representative that
payments are not being made or are not to be made under this Agreement. Such
claim shall be reviewed by the Corporation. If the claim is approved or denied,
in full or in part, the Corporation shall provide a written notice of approval
or denial within sixty (60) days from the date of receipt of the claim setting
forth the specific reason for denial, specific reference to the provision of
this Agreement upon which the denial is based, and any additional material or
information necessary to perfect the claim if any. Also, such written notice
shall indicate the steps to be taken if a review of the denial is desired. If a
claim is denied (a claim shall be deemed denied if the Corporation does not take
action within the aforesaid sixty (60) day period) and a review is desired, the
Executive (or beneficiary in the case of the Executive's death), shall notify
the Corporation in writing within twenty (20) days. In requesting a review, the
Executive or his beneficiary may review this Agreement or any document relating
to it and submit any written issues and comments he or she may feel appropriate.
In its sole discretion the Corporation shall then review the claim and provide a
written decision within sixty (60) days. This decision likewise shall state the
12
specific reasons for the decision and shall include reference to specific
provisions of this Agreement on which the decision is based.
Any decision of the Corporation shall not be binding on the Executive, his
personal representative, or any beneficiary without consent, nor shall it
preclude further action by the Executive, his personal representatives or
beneficiary.
13.02 ARBITRATION. All claims, disputes and other matters in question
-----------
between the parties hereto arising out of or relating to this Agreement or the
breach thereof may be decided by arbitration with the express mutual consent of
the Executive and the Corporation in accordance with the Rules of the American
Arbitration Association then obtaining, subject to the notations and
restrictions stated below. This Agreement to arbitrate and any other agreement
or consent to arbitrate entered into in accordance herewith will be specifically
enforceable under the prevailing arbitration law of any court having
jurisdiction.
Notice of demand for arbitration must be filed in writing with the other parties
to this Agreement and with the American Arbitration Association. The demand must
be made within a reasonable time after the claim, dispute or other matter in
question has arisen. In no event may the demand for arbitration be made after
institution of legal or equitable proceedings based on such claim, dispute or
other matter in question would be barred by the applicable statute of
limitations.
The award rendered by the arbitrators will be final, not subject to appeal and
judgment may be entered upon it in any court having jurisdiction thereof.
13
ARTICLE FOURTEEN
----------------
14.01 ENTIRE AGREEMENT. This instrument may be altered or amended only by
----------------
written agreement signed by the parties hereto.
14.02 JURISDICTION. The parties, terms and conditions of this Agreement are
------------
subject to and shall be governed by the laws of the Commonwealth of
Massachusetts.
14.03 GENDER. Any reference in this Agreement to the masculine shall be deemed
------
to include the feminine where the context so requires.
14.04 OPERATION OF LAW ON CORPORATION'S OBLIGATIONS. In the event that any
---------------------------------------------
governmental entity promulgates any statute, rule, regulation, policy or order
which restricts or prohibits the Corporation from making payments to the
Executive under this Agreement, then the Corporation's obligations to make
payments to the Executive (or his beneficiary) hereunder shall terminate or be
restricted or suspended (consistent with such law or binding regulation, policy
or order) for so long as such restriction or prohibition applies to the
Corporation. Nothing in this Agreement is intended to require or shall be
construed as requiring the Corporation to do or fail to do any act in violation
of any applicable law or binding regulation, policy or order.
14
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed by its duly authorized officer and its Corporate Seal affixed at
Sandwich, Massachusetts the day and year first above written.
--------
SANDWICH COOPERATIVE BANK
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxx X. Xxxxxxxxx
---------------------- ----------------------------------
Witness Chairman of the Personnel
Committee
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxx X. Xxxxxx
---------------------- ----------------------------------
Witness Xxxx X. Xxxxxx, Senior Vice
President
15
THE SANDWICH CO-OPERATIVE BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
____________________
1997 Amendment
____________________
WHEREAS, The Sandwich Co-operative Bank (the "Bank") has entered into a
Supplemental Executive Retirement Agreement with Xxxx X. Xxxxxx (the
"Agreement"); and
WHEREAS, the Board of Directors of the Bank deems it to be in the best
interest of the Bank to amend the Agreement to change the number of years of
service required for maximum benefits under the Agreement from 25 years to 20
years.
NOW, THEREFORE, pursuant to Section 14.01 of the Agreement, the Agreement
is hereby amended as follows, effective March 24, 1997 (date of Board Vote).
1. Section 2.01(b) of the Agreement shall be amended by replacing the
words "twenty-five (25) years (or 300 months)" with "twenty (20) years (or 240
months)" and the words "three hundred (300) months" with "two hundred forty
(240) months" wherever they appear.
2. Section 2.03 shall be amended by replacing the words "three hundred
(300) months" with the words "two hundred forty (240) months" wherever they
appear.
3. Nothing contained herein shall be held to alter, vary or affect any
of the terms, provisions, or conditions of the Agreement other than as stated
above.
WHEREFORE, on this 25th day of August, 1997, the Bank hereby executes this
1997 Amendment to the Agreement.
THE SANDWICH CO-OPERATIVE BANK
/s/ Xxxx Xxxxxxxx By /s/ Xxxx X. Xxxxxxxxx
----------------- ----------------------------
Witness Xxxx X. Xxxxxxxxx
Chairman of the Personnel Committee
__________________________ Attest: /s/ Xxxxxxxx X. Xxxxx (Seal)
------------------------
Clerk
SANDWICH COOPERATIVE BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT
AGREEMENT
April 24, 1995
96041095
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT, made and entered into this 5th day of May, 1995 by and
between Sandwich Cooperative Bank, its subsidiaries and affiliates,
(hereinafter called the "Corporation") and Xxxx X. Xxxxxx (hereinafter
called the "Executive").
WITNESSETH:
WHEREAS, the Executive has been in the employ of the Corporation
and/or its subsidiaries and is now serving the Corporation as its Senior
Vice President; and,
WHEREAS, because of the Executive's experience, knowledge of affairs
of the Corporation, and reputation and contacts in the industry, the
Corporation deems the Executive's continued employment with the Corporation
important for its future growth; and,
WHEREAS, it is the desire of the Corporation and in its best interest
that the Executive's service be retained;
WHEREAS, in order to induce the Executive to continue in the employ of
the Corporation and in recognition of his past service, the Board of
Directors voted on January 16, 1990 to authorize the Corporation to enter
into an agreement dated April 26, 1990 to provide him or his beneficiaries
certain benefits; and,
WHEREAS, in order to amend the agreement dated April 26, 1990 and
modify specific provisions contained therein, the Board of Directors voted
on January 23, 1995 to authorize the Corporation to restate the April 26,
1990 agreement and enter into this Agreement with the terms and conditions
hereinafter set forth:
NOW, THEREFORE, in consideration of services performed in the past and
to be performed in the future as well as of the mutual promises and
covenants herein contained, it is agreed as follows:
1
ARTICLE ONE
-----------
1.01 EMPLOYMENT. The Corporation may employ the Executive in such
----------
capacity as the Corporation may from time to time determine.
Notwithstanding anything contained herein, this Agreement is not an
agreement of employment and nothing herein shall restrict the Corporation
concerning the terms and conditions of the Executive's employment.
The benefits provided by this Agreement are not part of any salary
reduction plan or an arrangement deferring a bonus or a salary increase.
The Executive has no option to take any current payment or bonus in lieu of
these salary continuation benefits.
ARTICLE TWO
-----------
2.01 NORMAL RETIREMENT BENEFITS.
--------------------------
(a) If the Executive shall continue in the employment of the Corporation
until the first of the month coincident with or next following his
sixtieth birthday (hereinafter referred to as the "Normal Retirement
Date"), he shall be entitled to a Normal Retirement Benefit,
determined as of the effective date of his actual retirement and
continuing for twenty (20) years, payable monthly, in the annual
amount of sixty percent (60%) of his Benefit Computation Base
(hereinafter defined), reduced by the sum of (1), (2) and (3) below.
1. Fifty percent (50%) of the Executive's (actual or projected)
annual primary social security retirement benefit projected as of
the Executive's social security normal retirement age based on
his Benefit Computation Base in effect on the date of termination
of the Executive's employment with the Corporation;
2. The annual amount of benefits payable to the Executive (or his
beneficiaries) at the Normal Retirement Date calculated on a
single life annuity basis from any qualified defined benefit
pension plan maintained and funded by the
2
Corporation, as such plan or plans may be amended or modified
from time to time;
3. The annual amount of benefits payable at the Normal Retirement
Date on a single life annuity basis attributable to the portion
of the account balances of the Executive arising from employer
contributions (but excluding the portion of such balances arising
from employee salary reduction and elective contributions) at the
date of determination, from the Corporation's Employee Stock
Ownership Plan ("ESOP"), 401(k) and other defined contribution
retirement plans maintained by the Corporation as of the date of
this agreement, or their successors, as such plan or plans may be
modified from time to time.
(b) If the Executive has (or will have) completed fewer than twenty-five
(25) years (or 300 months) of service with the Corporation as of his
Normal Retirement Date, then the Normal Retirement Benefit shall be
the amount determined by multiplying the amount which would otherwise
be the Normal Retirement Benefit under paragraph (a) above, by a
fraction, not to exceed one (1), the numerator of which is the actual
number of months of the Executive's employment with the Corporation,
and the denominator of which is three hundred (300) months.
2.02 BENEFIT COMPUTATION BASE. The Executive's Benefit Computation Base
------------------------
shall be the average of the Executive's annual base salary (including any
salary reduction amounts pursuant to Sections 401(k) or 125 of the Internal
Revenue Code of 1986, as amended) paid during the thirty-six (36)
consecutive calendar months during the Executive's period of employment by
the Corporation in which such compensation is the highest.
2.03 ACCRUED BENEFIT. As used herein for the purposes of Section 3.01,
---------------
4.01, 5.01, or 5.02, the term "Accrued Benefit" shall mean:
3
1. The benefit amount the Executive would be entitled to under
Section 2.01, commencing at the Executive's Normal Retirement
Date except that in the event of (a) death, (b) disability, (c)
termination of employment, (d) early retirement, or (e) merger,
consolidation or sale (in the event of (d), as modified by
Section 10.1 hereof as the case may be, the benefit to which the
Executive will be entitled shall be determined by multiplying the
Normal Retirement Benefit amount by a fraction, not to exceed one
(1), the numerator of which is the actual number of months of the
Executive's employment with the Corporation, and the denominator
of which is three hundred (300) months.
2. If the Executive terminates employment prior to his Normal
Retirement Date, in calculating his Accrued Benefit, (i) the
offset for primary social security retirement benefit shall be
calculated on the basis of the amount projected to be payable at
the Executive's social security normal retirement age assuming
continued earnings by the Executive at the rate in effect at
termination of employment until the Executive's social security
normal retirement age; (ii) the offset for any qualified defined
benefit plan shall be calculated on the basis of the Executive's
accrued benefit in said plan upon termination of employment
projected to be payable at the Executive's Normal Retirement
Date, and (iii) the offset for any benefits arising from employer
contributions attributable to the account balances of the
Executive arising from the Corporation's ESOP, 401(k) plan or any
other defined contribution retirement plan shall also be
calculated on the basis of the Executive's accrued benefit in
such plan(s) upon termination of employment projected to be
payable at the Executive's Normal Retirement Date.
4
2.04 OPTIONAL FORMS OF PAYMENT. In lieu of the twenty (20) year certain
-------------------------
payments provided in Section 2.01 above, or whenever an Accrued Benefit is
payable under Section 4.01, 5.01 (5.02 or 10.01) of this Agreement, the
Executive may elect in the calendar year prior to the calendar year in
which payments are to begin, any optional form of payment which shall be
the actuarial equivalent (factors defined in the Corporation's qualified
defined benefit pension plan) of the said twenty (20) year certain
payments. The optional form of payment may be a lump sum payment and any
optional form of annuity payment which is provided to the Executive under
the terms of the Corporation's qualified defined benefit pension plan.
2.05 VESTING. Anything to the contrary in this Agreement notwithstanding,
-------
the Executive shall be entitled to one hundred percent (100%) of any
benefit payable under this Agreement under any one or more of Sections
2.01, 3.01, 4.01, 5.01, 5.02, or 10.01 at the date on which his entitlement
to such benefit shall be determined commencing with his original date of
hire with the Corporation.
ARTICLE THREE
-------------
3.01 DEATH OF EXECUTIVE.
------------------
(a) If the Executive dies while employed by the Corporation but prior to
the commencement of the payment of benefits under Section 2.01, 4.01,
5.01, 5.02, or 10.01, the Corporation will pay to the Executive's
named beneficiaries, for a period of twenty (20) years certain
commencing on the first day of the month next following the delivery
to the Corporation of a death certificate, a total annual amount
equal to the Accrued Benefit earned by the Executive as of the date
of death.
(b) If the Executive dies following the commencement of the payment of
benefits under Section 2.01, 4.01, 5.01, 5.02, or 10.01, such payment
of benefits shall continue to the named beneficiaries of the
Executive until all such benefits have been paid.
5
(c) If the Executive dies following the termination of his employment
with the Corporation and prior to the commencement of the payment of
benefits under Section 2.01, 4.01, 5.01, 5.02, or 10.01, the
Corporation shall pay to the Executive's named beneficiaries an
annual benefit which shall be the Executive's Accrued Benefit as of
the date of his termination of his employment. Such benefits shall be
payable monthly, commencing on the first day of the month next
following the Normal Retirement Date, or any date prior to the Normal
Retirement Date approved by the Corporation, and continuing for
twenty (20) years.
3.02 BENEFICIARIES. The Executive may designate, in writing to the
-------------
Corporation, one or more beneficiaries. If no beneficiary is so named or
if no named beneficiary is living at the time a payment is due, benefit
payments shall be made, when due, to the Executive's estate.
ARTICLE FOUR
------------
4.01 DISABILITY PRIOR TO RETIREMENT. In the event the Executive shall
------------------------------
become disabled, mentally or physically, which disability prevents him from
performing the material aspects of his duties, the Corporation will pay no
disability benefits hereunder. Disability benefits (if any) will be paid
to the Executive through such insurance programs as may be sponsored by the
Corporation. Upon the later of termination of such other disability
benefits (if any), or the Executive's attainment of the Normal Retirement
Date, the Executive shall commence receiving payment of his Accrued Benefit
determined as of the date of the disability, but with additional service
credited as if the Executive were working until the earlier of his Normal
Retirement Date or Termination of Service Date or Discharge Date as
determined by the Corporation. The Accrued Benefit shall be paid monthly,
for twenty (20) years certain commencing on the first day of the month
following the later of the termination of such benefits or the Normal
Retirement Date, or in the manner provided in Section 2.04.
6
4.02 RE-EMPLOYMENT FOLLOWING DISABILITY. In the event the Executive
----------------------------------
returns to work with the Corporation after terminating employment because
of disability, this Agreement shall continue in full force and effect as
though such disability had not occurred (including crediting the Executive
with all service with Corporation as if he were working).
ARTICLE FIVE
------------
5.01 EARLY RETIREMENT, TERMINATION OF SERVICE OR DISCHARGE. Except to the
-----------------------------------------------------
extent otherwise provided in Sections 5.03 and 5.04, in the event that the
Executive's employment with the Corporation is terminated, voluntarily or
involuntarily, before the Executive attains the Normal Retirement Date, for
reasons other than death or disability, the Executive shall be entitled to
an annual benefit, which shall be his Accrued Benefit as of the date of his
termination of employment. Such benefit shall be payable monthly,
commencing on the first day of the month next following the Normal
Retirement Date and continuing for twenty (20) years. The Executive may
elect to receive such benefit provided in this Section 5.01 prior to the
Normal Retirement Date at any date between age 55 and the Normal Retirement
Date. Such early commencement will result in an early commencement
reduction provided under the terms of the Corporation's Qualified defined
benefit pension plan for each month payment commences prior to the Normal
Retirement Date.
5.02 OPTIONAL FORMS OF PAYMENT. In lieu of the twenty (20) year certain
-------------------------
payments provided in Section 5.01, the benefits payable under such Sections
may be payable in the manner provided in Section 2.04.
5.03 EMPLOYMENT BY COMPETITION. Anything to the contrary in this Agreement
-------------------------
notwithstanding, in the event that either (a) prior to the Normal
Retirement Date, the Executive's employment with the Corporation, shall
have terminated for whatever reason or (b) after he shall have begun to
receive benefits under this Agreement, the Executive will not
7
forfeit any payments which might otherwise be due and payable hereunder
should the Executive become employed by a company in competition with the
Corporation
5.04 FORFEITURE. Anything to the contrary in this Agreement
----------
notwithstanding, benefits under this Agreement shall be immediately
forfeited and all rights of the Executive and his beneficiaries hereunder
shall become null and void, if the Executive's employment with the
Corporation is terminated for cause. For this purpose, a termination for
"Cause" shall mean conviction by a court of law for fraud, misappropriation
or embezzlement.
5.05 AVAILABILITY TO CONSULT. From and after prior commencement of
-----------------------
receipt of benefits pursuant to this Agreement; the Executive will keep
himself available to consult with, and respond to inquiries from, the
Corporation relating to its business affairs, at reasonable time(s) and to
reasonable extent.
ARTICLE SIX
-----------
6.01 INTEREST. Any payment that is required to be made hereunder that is
--------
delayed beyond the date specified in this agreement shall bear interest at
a variable rate which shall be the rate of interest on one year U.S.
Treasury Bills determined at the first auction of each calendar year or
part thereof during the period of which interest is to be applied to any
obligation hereunder.
ARTICLE SEVEN
-------------
7.01 ALIENABILITY. Neither the Executive, nor any beneficiary under this
------------
Agreement shall have any power or right to transfer, assign, anticipate,
hypothecate, mortgage, commute, modify, or otherwise encumber in advance
any of the benefits payable hereunder, nor shall
8
any of said benefits be subject to seizure for the payment of any debts,
judgments, alimony or separate maintenance, owed by the Executive or his
beneficiary or any of them, or be transferable by operation of law in the
event of bankruptcy, or otherwise.
ARTICLE EIGHT
-------------
8.01 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 Corporation may have or hereafter have.
ARTICLE NINE
------------
9.01 FUNDING.
-------
(a) The Corporation reserves the right at its sole and exclusive
discretion to insure or otherwise provide for the obligations of the
Corporation undertaken by this Agreement or to refrain from same, and
to determine the extent, nature and method thereof, including the
establishment of one or more trusts. Should the Corporation elect to
insure this Agreement, in whole or in part, through the medium of
insurance or annuities, or both, the Corporation shall be the owner
and beneficiary of the policy or annuity. At no time shall the
Executive be deemed to have any right, title or interest in or to any
specified asset or assets of the Corporation, or any trust or escrow
arrangement, including, but not by way of restriction, any insurance
or annuity contracts or the proceeds therefrom.
(b) Any such policy, contract or asset shall not in any way be considered
to be security for the performance of the obligations of this
Agreement.
9
(c) If the Corporation purchases a life insurance or annuity policy on
the life of the Executive, the Executive agrees to sign any papers
that may be required for that purpose and to undergo any medical
examination or tests (at the Corporation's expense) which may be
necessary, and generally cooperate with the Corporation in securing
such policy.
(d) To the extent the Executive acquires a right to receive benefits
under this Agreement, such right shall be equivalent to the right of
an unsecured general creditor of the Corporation.
ARTICLE TEN
-----------
10.01 REORGANIZATION. The Corporation shall not merge or consolidate into
--------------
or with another corporation if such merger or consolidation shall result in
the other corporation being the survivor corporation, nor shall it sell
substantially all of its assets to another corporation, firm or person,
unless and until:
(a) The Executive and such other corporation, firm or person agree that
the Executive shall continue in the employ of the succeeding,
continuing or acquiring corporation, firm or person and such other
corporation, firm or person agrees in writing without further
qualification to assume and discharge the obligations of the
Corporation under this Agreement, or,
(b) If the Executive and such corporation, firm or person do not agree
that the Executive shall continue in the employ of such corporation,
firm or person, or such corporation, firm or person does not so agree
to assume and discharge such obligations, the Corporation shall pay
to the Executive, in one lump sum, his Accrued Benefit as of the date
of such merger, consolidation or sale. AR calculations of the Accrued
Benefit for purposes of this Section 10.1(b), shall further be
discounted to present value in accordance with the actuarial tables
used in the Corporation's defined benefit pension plan.
10
Upon the occurrence of any such event and the written unqualified
assumption of the obligations of the Corporation by such successor
corporation, firm or person, the term "Corporation" as used in this
Agreement shall be deemed to refer to such successor or survivor
corporation, firm or person,
ARTICLE ELEVEN
--------------
11.01 BENEFITS AND BURDENS. This Agreement shall be binding upon and
--------------------
inure to the benefit of the Executive and his personal representatives, the
Corporation, and any successor organization which shall succeed to
substantially all of the Corporation's assets and business without regard
to the form of such succession.
11.02 CORPORATION. As used in this Agreement, Corporation shall mean the
-----------
Sandwich Cooperative Bank, a Massachusetts Corporation, and any affiliated
entity, successor organization, parent, subsidiary or holding company.
ARTICLE TWELVE
--------------
12.01 COMMUNICATIONS. 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 Corporation:
c/o Chairman of the Board
Sandwich Cooperative Bank
000 Xxx Xxxx'x Xxxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
11
To the Executive:
Xxxxxx X. Xxxxxx
Xxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Each party shall have the right by written notice to change the place to
which any notice may be addressed.
ARTICLE THIRTEEN
----------------
13.01 CLAIMS PROCEDURE. In the event that benefits under this Agreement
----------------
are not paid to the Executive (or his beneficiary in the case of the
Executive's death), and such person feels entitled to receive them, a claim
shall be made in writing to the Corporation within sixty (60) days after
written notice from the Corporation to the Executive or his beneficiary or
personal representative that payments are not being made or are not to be
made under this Agreement. Such claim shall be reviewed by the Corporation.
If the claim is approved or denied, in full or in part, the Corporation
shall provide a written notice of approval or denial within sixty (60) days
from the date of receipt of the claim setting forth the specific reason for
denial, specific reference to the provision of this Agreement upon which
the denial is based, and any additional material or information necessary
to perfect the claim if any. Also, such written notice shall indicate the
steps to be taken if a review of the denial is desired. If a claim is
denied (a claim shall be deemed denied if the Corporation does not take
action within the aforesaid sixty (60) day period) and a review is desired,
the Executive (or beneficiary in the case of the Executive's death), shall
notify the Corporation in writing within twenty (20) days. In requesting a
review, the Executive or his beneficiary may review this Agreement or any
document relating to it and submit any written issues and comments he or
she may feel appropriate. In its sole discretion the Corporation shall
then review the claim and provide a written decision within sixty (60)
days. This decision likewise shall state the
12
specific reasons for the decision and shall include reference to specific
provisions of this Agreement on which the decision is based.
Any decision of the Corporation shall not be binding on the Executive, his
personal representative, or any beneficiary without consent, nor shall it
preclude further action by the Executive, his personal representatives or
beneficiary.
13.02 ARBITRATION. All claims, disputes and other matters in question
-----------
between the parties hereto arising out of or relating to this Agreement or
the breach thereof may be decided by arbitration with the express mutual
consent of the Executive and the Corporation in accordance with the Rules
of the American Arbitration Association then obtaining, subject to the
notations and restrictions stated below. This Agreement to arbitrate and
any other agreement or consent to arbitrate entered into in accordance
herewith will be specifically enforceable under the prevailing arbitration
law of any court having jurisdiction.
Notice of demand for arbitration must be filed in writing with the other
parties to this Agreement and with the American Arbitration Association.
The demand must be made within a reasonable time after the claim, dispute
or other matter in question has arisen. In no event may the demand for
arbitration be made after institution of legal or equitable proceedings
based on such claim, dispute or other matter in question would be barred by
the applicable statute of limitations.
The award rendered by the arbitrators will be final, not subject to appeal
and judgment may be entered upon it in any court having jurisdiction
thereof.
13
ARTICLE FOURTEEN
----------------
14.01 ENTIRE AGREEMENT. This instrument may be altered or amended only by
----------------
written agreement signed by the parties hereto.
14.02 JURISDICTION. The parties, terms and conditions of this Agreement
------------
are subject to and shall be governed by the laws of the Commonwealth of
Massachusetts.
14.03 GENDER. Any reference in this Agreement to the masculine shall be
------
deemed to include the feminine where the context so requires.
14.04 OPERATION OF LAW ON CORPORATION'S OBLIGATIONS. In the event that
---------------------------------------------
any governmental entity promulgates any statute, rule, regulation, policy
or order which restricts or prohibits the Corporation from making payments
to the Executive under this Agreement, then the Corporation's obligations
to make payments to the Executive (or his beneficiary) hereunder shall
terminate or be restricted or suspended (consistent with such law or
binding regulation, policy or order) for so long as such restriction or
prohibition applies to the Corporation. Nothing in this Agreement is
intended to require or shall be construed as requiring the Corporation to
do or fail to do any act in violation of any applicable law or binding
regulation, policy or order.
14
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed by its duly authorized officer and its Corporate Seal affixed at
Sandwich, Massachusetts the day and year first above written.
--------
SANDWICH COOPERATIVE BANK
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxx X. Xxxxxxxxx
---------------------- -------------------------------
Witness Chairman of the Personnel
Committee
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxx
---------------------- -------------------------------
Witness Xxxxxx X. Xxxxxx, Senior Vice
President
15
THE SANDWICH CO-OPERATIVE BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
____________________
1997 Amendment
____________________
WHEREAS, The Sandwich Co-operative Bank (the "Bank") has entered into a
Supplemental Executive Retirement Agreement with Xxxxxx X. Xxxxxx (the
"Agreement"); and
WHEREAS, the Board of Directors of the Bank deems it to be in the best
interest of the Bank to amend the Agreement to change the number of years of
service required for maximum benefits under the Agreement from 25 years to 20
years.
NOW, THEREFORE, pursuant to Section 14.01 of the Agreement, the Agreement
is hereby amended as follows, effective March 24, 1997 (date of Board Vote).
1. Section 2.01(b) of the Agreement shall be amended by replacing the
words "twenty-five (25) years (or 300 months)" with "twenty (20) years (or 240
months)" and the words "three hundred (300) months" with "two hundred forty
(240) months" wherever they appear.
2. Section 2.03 shall be amended by replacing the words "three hundred
(300) months" with the words "two hundred forty (240) months" wherever they
appear.
3. Nothing contained herein shall be held to alter, vary or affect any
of the terms, provisions, or conditions of the Agreement other than as stated
above.
WHEREFORE, on this 25th day of August, 1997, the Bank hereby executes this
1997 Amendment to the Agreement.
THE SANDWICH CO-OPERATIVE BANK
/s/ Xxxx Xxxxxxxx By /s/ Xxxx X. Xxxxxxxxx
----------------- -----------------------
Witness Xxxx X. Xxxxxxxxx
Chairman of the Personnel Committee
______________________________ Attest: /s/ Xxxxxxxx X. Xxxxx (Seal)
----------------------
Clerk
SANDWICH COOPERATIVE BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT
AGREEMENT
April 24, 1995
96041095
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT, made and entered into this 5th day of May, 1995 by and
between Sandwich Cooperative Bank, its subsidiaries and affiliates,
(hereinafter called the "Corporation") and Xxxxxx X. Xxxxxx (hereinafter
called the "Executive").
WITNESSETH:
WHEREAS, the Executive has been in the employ of the Corporation
and/or its subsidiaries and is now serving the Corporation as its Senior
Vice President; and,
WHEREAS, because of the Executive's experience, knowledge of affairs
of the Corporation, and reputation and contacts in the industry, the
Corporation deems the Executive's continued employment with the Corporation
important for its future growth; and, WHEREAS, it is the desire of the
Corporation and in its best interest that the Executive's service be
retained;
WHEREAS, in order to induce the Executive to continue in the employ of
the Corporation and in recognition of his past service, the Board of
Directors voted on January 16, 1990 to authorize the Corporation to enter
into an agreement dated April 26, 1990 to provide him or his beneficiaries
certain benefits; and,
WHEREAS, in order to amend the agreement dated April 26, 1990 and
modify specific provisions contained therein, the Board of Directors voted
on January 23, 1995 to authorize the Corporation to restate the April 26,
1990 agreement and enter into this Agreement with the terms and conditions
hereinafter set forth:
NOW, THEREFORE, in consideration of services performed in the past and
to be performed in the future as well as of the mutual promises and
covenants herein contained, it is agreed as follows:
1
ARTICLE ONE
-----------
1.01 EMPLOYMENT. The Corporation may employ the Executive in such
----------
capacity as the Corporation may from time to time determine.
Notwithstanding anything contained herein, this Agreement is not an
agreement of employment and nothing herein shall restrict the Corporation
concerning the terms and conditions of the Executive's employment.
The benefits provided by this Agreement are not part of any salary
reduction plan or an arrangement deferring a bonus or a salary increase.
The Executive has no option to take any current payment or bonus in lieu of
these salary continuation benefits.
ARTICLE TWO
-----------
2.01 NORMAL RETIREMENT BENEFITS.
--------------------------
(a) If the Executive shall continue in the employment of the Corporation
until the first of the month coincident with or next following his
sixtieth birthday (hereinafter referred to as the "Normal Retirement
Date"), he shall be entitled to a Normal Retirement Benefit,
determined as of the effective date of his actual retirement and
continuing for twenty (20) years, payable monthly, in the annual
amount of sixty percent (60%) of his Benefit Computation Base
(hereinafter defined), reduced by the sum of (1), (2) and (3) below.
1. Fifty percent (50%) of the Executive's (actual or projected)
annual primary social security retirement benefit projected as
of the Executive's social security normal retirement age based
on his Benefit Computation Base in effect on the date of
termination of the Executive's employment with the Corporation;
2. The annual amount of benefits payable to the Executive (or his
beneficiaries) at the Normal Retirement Date calculated on a
single life annuity basis from any qualified defined benefit
pension plan maintained and funded by the
2
Corporation, as such plan or plans may be amended or modified from
time to time;
3. The annual amount of benefits payable at the Normal Retirement Date on
a single life annuity basis attributable to the portion of the account
balances of the Executive arising from employer contributions (but
excluding the portion of such balances arising from employee salary
reduction and elective contributions) at the date of determination,
from the Corporation's Employee Stock Ownership Plan ("ESOP"), 401(k)
and other defined contribution retirement plans maintained by the
Corporation as of the date of this agreement, or their successors, as
such plan or plans may be modified from time to time.
(b) If the Executive has (or will have) completed fewer than twenty-five (25)
years (or 300 months) of service with the Corporation as of his Normal
Retirement Date, then the Normal Retirement Benefit shall be the amount
determined by multiplying the amount which would otherwise be the Normal
Retirement Benefit under paragraph (a) above, by a fraction, not to exceed
one (1), the numerator of which is the actual number of months of the
Executive's employment with the Corporation, and the denominator of which
is three hundred (300) months.
2.02 BENEFIT COMPUTATION BASE. The Executive's Benefit Computation Base shall
------------------------
be the average of the Executive's annual base salary (including any salary
reduction amounts pursuant to Sections 401(k) or 125 of the Internal Revenue
Code of 1986, as amended) paid during the thirty-six (36) consecutive calendar
months during the Executive's period of employment by the Corporation in which
such compensation is the highest.
2.03 ACCRUED BENEFIT. As used herein for the purposes of Section 3.01, 4.01,
---------------
5.01, or 5.02, the term "Accrued Benefit" shall mean:
3
1. The benefit amount the Executive would be entitled to under Section 2.
0 1, commencing at the Executive's Normal Retirement Date except that
in the event of (a) death, (b) disability, (c) termination of
employment, (d) early retirement, or (e) merger, consolidation or sale
(in the event of (d), as modified by Section 10. 1 hereof as the case
may be, the benefit to which the Executive will be entitled shall be
determined by multiplying the Normal Retirement Benefit amount by a
fraction, not to exceed one (1), the numerator of which is the actual
number of months of the Executive's employment with the Corporation,
and the denominator of which is three hundred (300) months.
2. If the Executive terminates employment prior to his Normal Retirement
Date, in calculating his Accrued Benefit, (i) the offset for primary
social security retirement benefit shall be calculated on the basis of
the amount projected to be payable at the Executive's social security
normal retirement age assuming continued earnings by the Executive at
the rate in effect at termination of employment until the Executive's
social security normal retirement age; (ii) the offset for any
qualified defined benefit plan shall be calculated on the basis of the
Executive's accrued benefit in said plan upon termination of
employment projected to be payable at the Executive's Normal
Retirement Date, and (iii) the offset for any benefits arising from
employer contributions attributable to the account balances of the
Executive arising from the Corporation's ESOP, 401(k) plan or any
other defined contribution retirement plan shall also be calculated on
the basis of the Executive's accrued benefit in such plan(s) upon
termination of employment projected to be payable at the Executive's
Normal Retirement Date.
4
2.04 OPTIONAL FORMS OF PAYMENT. In lieu of the twenty (20) year certain
-------------------------
payments provided in Section 2.01 above, or whenever an Accrued Benefit is
payable under Section 4.01, 5.01 (5.02 or 10.01) of this Agreement, the
Executive may elect in the calendar year prior to the calendar year in which
payments are to begin, any optional form of payment which shall be the actuarial
equivalent (factors defined in the Corporation's qualified defined benefit
pension plan) of the said twenty (20) year certain payments. The optional form
of payment may be a lump sum payment and any optional form of annuity payment
which is provided to the Executive under the terms of the Corporation's
qualified defined benefit pension plan.
2.05 VESTING. Anything to the contrary in this Agreement notwithstanding, the
-------
Executive shall be entitled to one hundred percent (100%) of any benefit payable
under this Agreement under any one or more of Sections 2.01, 3.01, 4.01, 5.01,
5.02, or 10.01 at the date on which his entitlement to such benefit shall be
determined commencing with his original date of hire with the Corporation.
ARTICLE THREE
-------------
3.01 DEATH OF EXECUTIVE.
------------------
(a) If the Executive dies while employed by the Corporation but prior to the
commencement of the payment of benefits under Section 2.01, 4.01, 5.01,
5.02, or 10.01, the Corporation will pay to the Executive's named
beneficiaries, for a period of twenty (20) years certain commencing on
the first day of the month next following the delivery to the Corporation
of a death certificate, a total annual amount equal to the Accrued
Benefit earned by the Executive as of the date of death.
(b) If the Executive dies following the commencement of the payment of
benefits under Section 2.01, 4.01, 5.01, 5.02, or 10.01, such payment of
benefits shall continue to the named beneficiaries of the Executive until
all such benefits have been paid.
5
(c) If the Executive dies following the termination of his employment with
the Corporation and prior to the commencement of the payment of benefits
under Section 2.01, 4.01, 5.01, 5.02, or 10.01, the Corporation shall pay
to the Executive's named beneficiaries an annual benefit which shall be
the Executive's Accrued Benefit as of the date of his termination of his
employment. Such benefits shall be payable monthly, commencing on the
first day of the month next following the Normal Retirement Date, or any
date prior to the Normal Retirement Date approved by the Corporation, and
continuing for twenty (20) years.
3.02 BENEFICIARIES. The Executive may designate, in writing to the
-------------
Corporation, one or more beneficiaries. If no beneficiary is so named or if no
named beneficiary is living at the time a payment is due, benefit payments shall
be made, when due, to the Executive's estate.
ARTICLE FOUR
------------
4.01 DISABILITY PRIOR TO RETIREMENT. In the event the Executive shall become
------------------------------
disabled, mentally or physically, which disability prevents him from performing
the material aspects of his duties, the Corporation will pay no disability
benefits hereunder. Disability benefits (if any) will be paid to the Executive
through such insurance programs as may be sponsored by the Corporation. Upon the
later of termination of such other disability benefits (if any), or the
Executive's attainment of the Normal Retirement Date, the Executive shall
commence receiving payment of his Accrued Benefit determined as of the date of
the disability, but with additional service credited as if the Executive were
working until the earlier of his Normal Retirement Date or Termination of
Service Date or Discharge Date as determined by the Corporation. The Accrued
Benefit shall be paid monthly, for twenty (20) years certain commencing on the
first day of the month following the later of the termination of such benefits
or the Normal Retirement Date, or in the manner provided in Section 2.04.
6
4.02 RE-EMPLOYMENT FOLLOWING DISABILITY. In the event the Executive returns
----------------------------------
to work with the Corporation after terminating employment because of disability,
this Agreement shall continue in full force and effect as though such disability
had not occurred (including crediting the Executive with all service with
Corporation as if he were working).
ARTICLE FIVE
------------
5.01 EARLY RETIREMENT, TERMINATION OF SERVICE OR DISCHARGE. Except to the
-----------------------------------------------------
extent otherwise provided in Sections 5.03 and 5.04, in the event that the
Executive's employment with the Corporation is terminated, voluntarily or
involuntarily, before the Executive attains the Normal Retirement Date, for
reasons other than death or disability, the Executive shall be entitled to an
annual benefit, which shall be his Accrued Benefit as of the date of his
termination of employment. Such benefit shall be payable monthly, commencing on
the first day of the month next following the Normal Retirement Date and
continuing for twenty (20) years. The Executive may elect to receive such
benefit provided in this Section 5.01 prior to the Normal Retirement Date at any
date between age 55 and the Normal Retirement Date. Such early commencement will
result in an early commencement reduction provided under the terms of the
Corporation's Qualified defined benefit pension plan for each month payment
commences prior to the Normal Retirement Date.
5.02 OPTIONAL FORMS OF PAYMENT. In lieu of the twenty (20) year certain
-------------------------
payments provided in Section 5.01, the benefits payable under such Sections may
be payable in the manner provided in Section 2.04.
5.03 EMPLOYMENT BY COMPETITION. Anything to the contrary in this Agreement
-------------------------
notwithstanding, in the event that either (a) prior to the Normal Retirement
Date, the Executive's employment with the Corporation, shall have terminated for
whatever reason or (b) after he shall have begun to receive benefits under this
Agreement, the Executive will not
7
forfeit any payments which might otherwise be due and payable hereunder should
the Executive become employed by a company in competition with the Corporation
5.04 FORFEITURE. Anything to the contrary in this Agreement notwithstanding,
----------
benefits under this Agreement shall be immediately forfeited and all rights of
the Executive and his beneficiaries hereunder shall become null and void, if the
Executive's employment with the Corporation is terminated for cause. For this
purpose, a termination for "Cause" shall mean conviction by a court of law for
fraud, misappropriation or embezzlement.
5.05 AVAILABILITY TO CONSULT. From and after prior commencement of receipt of
-----------------------
benefits pursuant to this Agreement; the Executive will keep himself available
to consult with, and respond to inquiries from, the Corporation relating to its
business affairs, at reasonable time(s) and to reasonable extent.
ARTICLE SIX
-----------
6.01 INTEREST. Any payment that is required to be made hereunder that is
--------
delayed beyond the date specified in this agreement shall bear interest at a
variable rate which shall be the rate of interest on one year U.S. Treasury
Bills determined at the first auction of each calendar year or part thereof
during the period of which interest is to be applied to any obligation
hereunder.
ARTICLE SEVEN
-------------
7.01 ALIENABILITY. Neither the Executive, nor any beneficiary under this
------------
Agreement shall have any power or right to transfer, assign, anticipate,
hypothecate, mortgage, commute, modify, or otherwise encumber in advance any of
the benefits payable hereunder, nor shall
8
any of said benefits be subject to seizure for the payment of any debts,
judgments, alimony or separate maintenance, owed by the Executive or his
beneficiary or any of them, or be transferable by operation of law in the event
of bankruptcy, or otherwise.
ARTICLE EIGHT
-------------
8.01 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 Corporation may have or hereafter have.
ARTICLE NINE
------------
9.01 FUNDING.
-------
(a) The Corporation reserves the right at its sole and exclusive discretion
to insure or otherwise provide for the obligations of the Corporation
undertaken by this Agreement or to refrain from same, and to determine
the extent, nature and method thereof, including the establishment of one
or more trusts. Should the Corporation elect to insure this Agreement, in
whole or in part, through the medium of insurance or annuities, or both,
the Corporation shall be the owner and beneficiary of the policy or
annuity. At no time shall the Executive be deemed to have any right,
title or interest in or to any specified asset or assets of the
Corporation, or any trust or escrow arrangement, including, but not by
way of restriction, any insurance or annuity contracts or the proceeds
therefrom.
(b) Any such policy, contract or asset shall not in any way be considered to
be security for the performance of the obligations of this Agreement.
9
(c) If the Corporation purchases a life insurance or annuity policy on the
life of the Executive, the Executive agrees to sign any papers that may
be required for that purpose and to undergo any medical examination or
tests (at the Corporation's expense) which may be necessary, and
generally cooperate with the Corporation in securing such policy.
(d) To the extent the Executive acquires a right to receive benefits under
this Agreement, such right shall be equivalent to the right of an
unsecured general creditor of the Corporation.
ARTICLE TEN
-----------
10.01 REORGANIZATION. The Corporation shall not merge or consolidate into or
--------------
with another corporation if such merger or consolidation shall result in the
other corporation being the survivor corporation, nor shall it sell
substantially all of its assets to another corporation, firm or person, unless
and until:
(a) The Executive and such other corporation, firm or person agree that the
Executive shall continue in the employ of the succeeding, continuing or
acquiring corporation, firm or person and such other corporation, firm or
person agrees in writing without further qualification to assume and
discharge the obligations of the Corporation under this Agreement, or,
(b) If the Executive and such corporation, firm or person do not agree that
the Executive shall continue in the employ of such corporation, firm or
person, or such corporation, firm or person does not so agree to assume
and discharge such obligations, the Corporation shall pay to the
Executive, in one lump sum, his Accrued Benefit as of the date of such
merger, consolidation or sale. AR calculations of the Accrued Benefit for
purposes of this Section 10.1(b), shall further be discounted to present
value in accordance with the actuarial tables used in the Corporation's
defined benefit pension plan.
10
Upon the occurrence of any such event and the written unqualified assumption of
the obligations of the Corporation by such successor corporation, firm or
person, the term "Corporation" as used in this Agreement shall be deemed to
refer to such successor or survivor corporation, firm or person,
ARTICLE ELEVEN
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11.01 BENEFITS AND BURDENS. This Agreement shall be binding upon and inure to
--------------------
the benefit of the Executive and his personal representatives, the Corporation,
and any successor organization which shall succeed to substantially all of the
Corporation's assets and business without regard to the form of such succession.
11.02 CORPORATION. As used in this Agreement, Corporation shall mean the
-----------
Sandwich Cooperative Bank, a Massachusetts Corporation, and any affiliated
entity, successor organization, parent, subsidiary or holding company.
ARTICLE TWELVE
--------------
12.01 COMMUNICATIONS. 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 Corporation:
c/o Chairman of the Board
Sandwich Cooperative Bank
000 Xxx Xxxx'x Xxxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
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To the Executive:
Xxxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Each party shall have the right by written notice to change the place to which
any notice may be addressed.
ARTICLE THIRTEEN
----------------
13.01 CLAIMS PROCEDURE. In the event that benefits under this Agreement are
----------------
not paid to the Executive (or his beneficiary in the case of the Executive's
death), and such person feels entitled to receive them, a claim shall be made in
writing to the Corporation within sixty (60) days after written notice from the
Corporation to the Executive or his beneficiary or personal representative that
payments are not being made or are not to be made under this Agreement. Such
claim shall be reviewed by the Corporation. If the claim is approved or denied,
in full or in part, the Corporation shall provide a written notice of approval
or denial within sixty (60) days from the date of receipt of the claim setting
forth the specific reason for denial, specific reference to the provision of
this Agreement upon which the denial is based, and any additional material or
information necessary to perfect the claim if any. Also, such written notice
shall indicate the steps to be taken if a review of the denial is desired. If a
claim is denied (a claim shall be deemed denied if the Corporation does not take
action within the aforesaid sixty (60) day period) and a review is desired, the
Executive (or beneficiary in the case of the Executive's death), shall notify
the Corporation in writing within twenty (20) days. In requesting a review, the
Executive or his beneficiary may review this Agreement or any document relating
to it and submit any written issues and comments he or she may feel appropriate.
In its sole discretion the Corporation shall then review the claim and provide a
written decision within sixty (60) days. This decision likewise shall state the
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specific reasons for the decision and shall include reference to specific
provisions of this Agreement on which the decision is based.
Any decision of the Corporation shall not be binding on the Executive, his
personal representative, or any beneficiary without consent, nor shall it
preclude further action by the Executive, his personal representatives or
beneficiary.
13.02 ARBITRATION. All claims, disputes and other matters in question between
-----------
the parties hereto arising out of or relating to this Agreement or the breach
thereof may be decided by arbitration with the express mutual consent of the
Executive and the Corporation in accordance with the Rules of the American
Arbitration Association then obtaining, subject to the notations and
restrictions stated below. This Agreement to arbitrate and any other agreement
or consent to arbitrate entered into in accordance herewith will be specifically
enforceable under the prevailing arbitration law of any court having
jurisdiction.
Notice of demand for arbitration must be filed in writing with the other parties
to this Agreement and with the American Arbitration Association. The demand must
be made within a reasonable time after the claim, dispute or other matter in
question has arisen. In no event may the demand for arbitration be made after
institution of legal or equitable proceedings based on such claim, dispute or
other matter in question would be barred by the applicable statute of
limitations.
The award rendered by the arbitrators will be final, not subject to appeal and
judgment may be entered upon it in any court having jurisdiction thereof.
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ARTICLE FOURTEEN
----------------
14.01 ENTIRE AGREEMENT. This instrument may be altered or amended only by
----------------
written agreement signed by the parties hereto.
14.02 JURISDICTION. The parties, terms and conditions of this Agreement
------------
are subject to and shall be governed by the laws of the Commonwealth of
Massachusetts.
14.03 GENDER. Any reference in this Agreement to the masculine shall be deemed
------
to include the feminine where the context so requires.
14.04 OPERATION OF LAW ON CORPORATION'S OBLIGATIONS. In the event that any
---------------------------------------------
governmental entity promulgates any statute, rule, regulation, policy or order
which restricts or prohibits the Corporation from making payments to the
Executive under this Agreement, then the Corporation's obligations to make
payments to the Executive (or his beneficiary) hereunder shall terminate or be
restricted or suspended (consistent with such law or binding regulation, policy
or order) for so long as such restriction or prohibition applies to the
Corporation. Nothing in this Agreement is intended to require or shall be
construed as requiring the Corporation to do or fail to do any act in violation
of any applicable law or binding regulation, policy or order.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed by its duly authorized officer and its Corporate Seal affixed at
Sandwich, Massachusetts the day and year first above written.
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SANDWICH COOPERATIVE BANK
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxx X. Xxxxxxxxx
---------------------------------- ---------------------------------
Witness Chairman of the Personnel Committee
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxxx X. Xxxxxxx
---------------------------------- ---------------------------------
Witness Xxxxx X. Xxxxxxx, Senior Vice
President
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