FHE Draft for Review
May 3, 1998
Officers with Employment Agreements
CHANGE IN CONTROL AGREEMENT
AGREEMENT made as of the ___ day of ______, 1998, by and among [SEACOAST
FINANCIAL SERVICES CORPORATION], a Massachusetts corporation (the "Holding
Company") and the parent company for COMPASS BANK FOR SAVINGS, a Massachusetts
chartered savings bank, with its executive offices in New Bedford, Massachusetts
(the "Bank") (the Bank and the Holding Company shall be hereinafter collectively
referred to as the "Employers"), and ______________ of _____________,
Massachusetts (the "Executive").
1. Purpose. In order to allow the Executive to consider the prospect of a
Change in Control (as defined in Section 2) in an objective manner and in
consideration of the execution of that certain Employment Agreement between the
Executive and the Holding Company dated as of the date hereof (the "Employment
Agreement"), the services to be rendered by the Executive to the Employers and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the Holding Company, the Holding Company is willing to
provide, subject to the terms of this Agreement, certain severance benefits to
protect the Executive from the consequences of a Terminating Event (as defined
in Section 3) occurring subsequent to a Change in Control.
2. Change in Control. A "Change in Control" shall be deemed to have
occurred in either of the following events:
2.1 If there has occurred a change in control which the Holding Company
would be required to report in response to Item 1 of Form 8-K promulgated under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), or, if such
regulation is no longer in effect, any regulations promulgated by the Securities
and Exchange Commission pursuant to the 1934 Act which are intended to serve
similar purposes;
2.2 When any "person" (as such term is used in Sections 13(d) and 14(d)(2)
of the 1934 Act) becomes a "beneficial owner" (as such term is defined in Rule
13d-3 promulgated under the 1934 Act), directly or indirectly, of securities of
the Holding Company or the Bank representing twenty-five percent (25%) or more
of the total number of votes that may be cast for the election of directors of
the Holding Company or the Bank, as the case may be;
2.3 During any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Holding
Company, and any new director (other than a director designated by a person who
has entered into an agreement with the Holding Company to effect a transaction
described in Section 2.2, 2.4, or 2.5 of this Agreement) whose election by the
Board or nomination for election by the Holding Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was
previously so approved, cease for any reason to constitute at least a majority
of the Board of Directors of the Holding Company;
2.4 The stockholders of the Holding Company approve a merger, share
exchange or consolidation ("merger or consolidation") of the Holding Company
with any other corporation, other than (a) a merger or consolidation which would
result in the voting securities of the Holding Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than 70% of
the combined voting power of the voting securities of the Holding Company or
such surviving entity outstanding immediately after such merger or consolidation
or (b) a merger or consolidation effected to implement a recapitalization of the
Holding Company (or similar transaction) in which no "person" (as hereinabove
defined) acquires more than 30% of the combined voting power of the Holding
Company's then outstanding securities; or
2.5 The stockholders of the Holding Company or the Bank approve a plan of
complete liquidation of the Holding Company or the Bank or an agreement for the
sale or disposition by the Holding Company or the Bank of all or substantially
all of the Holding Company's or the Bank's assets.
3. Terminating Event. A "Terminating Event" shall mean
3.1 Termination by either of the Employers of the employment of the
Executive with either of the Employers for any reason other than (i) death or
(ii) for Cause (as such term is defined in the Employment Agreements), or
3.2 Resignation of the Executive from the employ of either of the
Employers, while the Executive is not receiving payments or benefits from either
of the Employers by reason of the Executive's disability, subsequent to the
occurrence of any of the following events:
(a) a significant change in the nature or scope of the Executive's
responsibilities, authorities, powers, functions or duties from the
responsibilities, authorities, powers, functions or duties exercised by the
Executive immediately prior to the Change in Control; or
(b) a determination by the Executive that, as a result of a Change in
Control, he is unable to exercise the responsibilities, authorities, powers,
functions or duties exercised by the Executive immediately prior to such Change
in Control; or
(c) a reduction in the Executive's annual base salary as in effect on
the date hereof or as the same may be increased from time to time; or
(d) the relocation of the Employers' offices at which the Executive is
principally employed immediately prior to the date of the Change in Control to a
location more than 25 miles from New Bedford, Massachusetts, or either
Employer's requiring the Executive to be based anywhere other than the
Employers' offices at such location; or
(e) the failure by either Employer to pay to the Executive any portion
of his current compensation or to pay to the Executive any portion of an
installment of deferred compensation under any deferred compensation program of
either Employer within seven (7) days of the date such compensation is due; or
(f) the failure by either Employer to continue in effect any material
compensation, incentive, bonus or benefit plan in which the Executive
participates immediately prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made with respect to such plan, or the failure by either Employer to continue
the Executive's participation therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms of the amount of
benefits provided and the level of the Executive's participation relative to
other participants, as existed at the time of the Change in Control; or
(g) the failure by either Employer to continue to provide the Executive
with benefits substantially similar to those available to the Executive under
any of either Employer's life insurance, medical, health and accident, or
disability plans or any other material benefit plans in which the Executive as
participating at the time of the Change in Control, the taking of any action by
either Employer which would directly or indirectly materially reduce any such
benefits, or the failure by either Employer to provide the Executive with the
number of paid vacation days to which the Executive is entitled on the basis of
years of service with the Employers in accordance with the Employers' normal
vacation policy in effect at the time of the Change in Control; or
(h) the failure of either Employer to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement.
4. Severance Payment. In the event a Terminating Event occurs within three
(3) years after a Change in Control, Holding Company shall pay to the Executive
an amount equal to (x) three times the "base amount" (as defined in Section
280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"))
applicable to the Executive, less (y) One Dollar ($1.00), payable in one
lump-sum payment on the date of termination.
5. Benefit Continuation. In the event a Terminating Event occurs within
three (3) years after a Change in Control, the Holding Company shall continue to
pay to the Executive the disability and medical benefits existing on the date of
the Terminating Event at the level in effect on, and at the same out-of-pocket
cost to the Executive as of, the date of such Terminating Event, for a period of
three (3) years.
6. Limitation on Benefits.
6.1 It is the intention of the Executive and of the Employers that no
payments by the Employers to or for the benefit of the Executive under this
Agreement or any other agreement or plan pursuant to which he is entitled to
receive payments or benefits shall be non-deductible to the Employers by reason
of the operation of Section 280G of the Code relating to parachute
payments. Accordingly, and notwithstanding any other provision of this Agreement
or any such agreement or plan, if by reason of the operation of said Section
280G, any such payments exceed the amount which can be deducted by the
Employers, such payments shall be reduced to the maximum amount which can be
deducted by the Employers. To the extent that payments exceeding such maximum
deductible amount have been made to or for the benefit of the Executive, such
excess payments shall be refunded to the Employers with interest thereon at the
applicable Federal Rate determined under Section 1274(d) of the Code, compounded
annually, or at such other rate as may be required in order that no such
payments shall be non-deductible to the Employers by reason of the operation of
said Section 280G. To the extent that there is more than one method of reducing
the payments to bring them within the limitations of said Section 280G, the
Executive shall determine which method shall be followed, provided that if the
Executive fails to make such determination within forty-five days after the
Employers have sent him written notice of the need for such reduction, the
Employers may determine the method of such reduction in their sole discretion.
6.2 If any dispute between the Employers and the Executive as to any of the
amounts to be determined under this Section 6 or the method of calculating such
amounts cannot be resolved by the Employers and the Executive, either party
after giving three days written notice to the other, may refer the dispute to a
partner in a Massachusetts office of a firm of independent certified public
accountants selected jointly by the Employers and the Executive. The
determination of such partner as to the amounts to be determined under Section
6.1 and the method of calculating such amounts shall be final and binding on
both the Employers and the Executive. The Employers shall bear the costs of any
such determination.
6.3 The Executive confirms that he is aware of the fact that the Federal
Deposit Insurance Corporation has the power to preclude the Bank from making
payments to the Executive under this Agreement under certain circumstances. The
Executive agrees that the Bank shall not be deemed to be in breach of this
Agreement if it is precluded from making a payment otherwise payable hereunder
by reason of regulatory requirements binding on the Bank.
7. Employment Status. This Agreement is not an agreement for the employment
of the Executive and shall confer no rights on the Executive except as herein
expressly provided.
8. Term. This Agreement shall take effect as of the date hereof and shall
terminate upon the earlier of (a) the resignation or termination of the
Executive for any reason prior to a Change in Control, or (b) the resignation of
the Executive after a Change in Control for any reason other than the occurrence
of any of the events enumerated in Section 3.2 of this Agreement.
9. Withholding. All payments made by the Holding Company under this
Agreement shall be net of any tax or other amounts required to be withheld by
the Holding Company under applicable law.
10. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled by arbitration
in accordance with the laws of The
Commonwealth of Massachusetts by three arbitrators, one of whom shall be
appointed by the Holding Company, one by the Executive and the third by the
first two arbitrators. If the first two arbitrators cannot agree on the
appointment of a third arbitrator, then the third arbitrator shall be appointed
by the American Arbitration Association in the City of Boston. Such arbitration
shall be conducted in the City of Boston in accordance with the rules of the
American Arbitration Association, except with respect to the selection of
arbitrators which shall be as provided in this Section 10. Judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. In the event that it shall be necessary or desirable for
the Executive to retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of any or all of the Executive's rights under
this Agreement, the Holding Company shall pay (or the Executive shall be
entitled to recover from the Holding Company, as the case may be) the
Executive's reasonable attorneys' fees and other reasonable costs and expenses
in connection with the enforcement of said rights (including the enforcement of
any arbitration award in court) regardless of the final outcome, unless and to
the extent the arbitrators shall determine that under the circumstances recovery
by the Executive of all or a part of any such fees and costs and expenses would
be unjust.
11. Assignment; Successors and Assigns, etc. Neither the Holding Company
nor the Executive may make any assignment of this Agreement or any interest
herein, by operation of law or otherwise, without the prior written consent of
the other party and without such consent any attempted transfer or assignment
shall be null and of no effect; provided, however, that the Holding Company may
assign its rights and obligations under this Agreement without the consent of
the Executive in the event either Employer shall hereafter effect a
reorganization, consolidate with or merge into any other Person, or transfer all
or substantially all of its properties or assets to any other Person. This
Agreement shall inure to the benefit of and be binding upon the Holding Company
and the Executive, and their respective successors, executors, administrators,
heirs and permitted assigns. In the event of the Executive's death prior to the
completion by the Holding Company of all payments due him under this Agreement,
the Holding Company shall continue such payments to the Executive's beneficiary
designated in writing to the Holding Company prior to his death (or to his
estate, if he fails to make such designation).
12. Enforceability. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
13. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
14. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by registered or
certified mail, postage prepaid, to the Executive at the last address the
Executive has filed in writing with the Holding Company or, in the case of the
Holding Company, at its main office, attention of the Board of Directors.
15. Election of Remedies. An election by the Executive to resign after a
Change in Control under the provisions of this Agreement shall not constitute a
breach by the Executive of any employment agreement the Executive may have with
either Employer and shall not be deemed a voluntary termination of employment by
the Executive for the purpose of interpreting the provisions of any of the
Employers' benefit plans, programs or policies. Nothing in this Agreement shall
be construed to limit the rights of the Executive under any employment agreement
he may then have with either Employer, provided, however, that if there is a
Terminating Event under Section 3 hereof, the Executive may elect either to
receive the severance and other payments provided under Section 4 and Section 5
or such termination benefits as he may have under any such employment agreement,
but may not elect to receive both. If the Executive elects not to receive the
severance and other payments provided under Section 4 and Section 5, the
provisions of Section 6 shall not be binding upon the Executive.
16. Amendment. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized representative of
the Holding Company.
17. Governing Law. This is a Massachusetts contract and shall be construed
under and be governed in all respects by the laws of The Commonwealth of
Massachusetts.
18. Interpretation. References to Sections include subsections, which are
part of the related Section (e.g., a section numbered "Section 5.5" would be
part of "Section 5" and references to "Section 5" would also refer to material
contained in the subsection described as "Section 5.5").
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Holding Company, by its duly authorized officer, and by the Executive, as
of the date first above written.
WITNESS: EXECUTIVE
ATTEST: [SEACOAST FINANCIAL SERVICES CORPORATION]
By: -------------------------------------------------
Title:-----------------------------------------------
[Seal]
The undersigned hereby unconditionally
guarantees the obligations of the Holding
Company under the foregoing Agreement.
COMPASS BANK FOR SAVINGS
By:-----------------------------------------
Title:--------------------------------------
