EXHIBIT 10.4
Supplemental Retirement Income Agreement
AGREEMENT, made as of this 20th day of December, 1990 by and between
BROOKLINE SAVINGS BANK, a savings bank organized and existing under the laws of
the Commonwealth of Massachusetts (hereinafter referred to as the "Bank"), and
XXXXX X. XXXXX (hereinafter referred to as "Employee"),
W I T N E S S E T H:
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A. Employee has been employed by the Bank in an Executive capacity for
many years and the Bank wishes to retain Employee in such capacity.
B. The Bank is willing to provide certain retirement/death benefits to
Employee in addition to those that may be available to Employee under the Bank's
current retirement and pension plans (the "Current Plans").
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Definitions. For purposes hereof the following terms shall have the
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meanings ascribed to them below:
"Beneficiary" shall mean that person designated, in the most recent writing
submitted by Employee to the Bank (the "Beneficiary Designation"), as the
beneficiary under this Supplemental Retirement Income Agreement. In the event
that Employee dies without having so named a person surviving her as the
beneficiary hereunder, the Beneficiary hereunder shall be the
Employee's estate. In the event the Beneficiary survives the Employee but dies
before the expiration of the Benefit Period, those persons, if any, named as
alternate beneficiaries in the Beneficiary Designation (the "Alternates") shall
thereafter be deemed to be the Beneficiary hereunder, provided however, that if
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the Alternates are deemed to be the Beneficiary hereunder but all of such
Alternates die before the expiration of the Benefit Period, the Employee's
estate shall be deemed to be the Beneficiary hereunder.
"Benefit" means the Monthly Benefit or Lump-Sum Benefit, as the case may
be.
"Benefit Accruals" shall mean the aggregate accruals made by the Bank on
its books, in order to fully reflect the costs of the Normal Retirement Benefit
to be paid hereunder, based upon an assumed Retirement at age 65, and upon such
mortality tables and assumed interest rates as the Committee determines to be
appropriate.
"Benefit Period" shall mean, in the case where Employee Retires prior to
death, the period commencing on the date the Employee Retires and ending on the
later to occur of (i) said Employee's death or (ii) the expiration of 180 months
from the Employee's Retirement; and, in the case where the Employee dies while
still employed by the Bank, the period commencing on the date of the Employee's
death and ending on the earlier to occur of (i) the expiration of 180 months
from the Employee's death and (ii) the date upon which Employee would have
become (if she had survived to such date) the Life Expectancy Age.
"Board" shall mean the Board of Trustees of the Bank.
"Committee" shall mean the Bond and Salary Committee of the Bank, or such
other Committee of the Bank as the Board, from time to time, may designate to
oversee and administer the terms of this Agreement
"Early Retirement Benefit" shall mean the amount (determined as of the date
of Retirement) that would completely amortize the Benefit Accruals made through
such Retirement, assuming:
(i) such amount is to be paid each month of the Benefit Period;
(ii) the Benefit Period will last the longest possible time (based upon
such mortality tables as the Committee determines to be appropriate);
(iii) that the remaining balance of such accruals earns interest at a rate
determined to be reasonable by the Committee.
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"Life Expectancy Age" shall mean the age determined by adding to the
Employee's age at death the standard life expectancy (based upon such mortality
tables as the Committee determines to be appropriate) of a healthy female of the
Employee's age at death, determined as of the date of Employee's death.
"Lump-Sum Benefit" means a one time payment equal to the actuarial value,
on the date of such payment, of the Monthly Benefits remaining payable
hereunder, based upon such mortality tables and interest rate assumptions as are
determined to be reasonable by an independent actuary selected by the Committee.
"Monthly Benefit" shall mean in the case of Retirement on or after the
Employee's 65th birthday, the Normal Retirement Benefit; and in the case of
Retirement prior to Employee's 65th birthday, the Early Retirement Benefit.
"Normal Retirement Benefit" shall mean $3,000.00 per month.
"Retirement" or Retires" shall mean the termination (by Employee or by the
Bank) of Employee's employment with the Bank, whether voluntary or involuntary
and including termination due to the death of the Employee, while employed by
the Bank.
"Total Disability" or "Totally Disabled" shall mean Employee's becoming so
incapacitated (either physically or mentally) that she is unable to fulfill all
of her duties as an executive employee of the Bank. The determination of Total
Disability shall be made, in the case of Employee's voluntary Retirement, by a
physician mutually acceptable to the Employee and the Bank and in the case of
termination pursuant to Section 6 hereof, by the Committee in accordance with
Section 6.
2. Employment. Employee agrees to continue to serve the Bank, devoting
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here normal working time to the interests and activities of the Bank, in the
capacity of Vice-President or such other capacity as the Board from time to time
may assign to her.
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3. Salary, Etc. Payments hereunder shall be supplemental and in addition
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to all other payments of salary, pension amounts or profit sharing payments made
by the Bank to or for the benefit of the Employee.
4. Supplemental Income upon Retirement. (a) Except as provided in
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Section 6 hereof, commencing on the first day of the first month after
Employee's Retirement, and on the first day of each month thereafter until the
expiration of the Benefit Period, the Bank shall pay to Employee (or to the
Beneficiary if the Employee is not then living) an amount equal to the Monthly
Benefit. Alternatively, and at any time, in lieu of future Monthly Benefits due
hereunder, the Bank may elect to make a Lump-Sum Benefit payment to Employee or
the Beneficiary, as the case may be.
(b) The Bank reserves the right to withhold from payment of Benefits
hereunder such amount of income, payroll, and other taxes as the Bank deems
advisable.
(c) Notwithstanding any provisions hereof to the contrary, if the Employee
Retires on or after he 65th birthday: (i) the Committee shall determine the
Early Retirement Benefit as of the date of such Retirement (the "Minimum
Benefit"), and (ii) if the Minimum Benefit exceeds the Monthly Benefit
calculated hereunder, then the Monthly Benefit for all purposes hereunder shall
be increased to equal said Minimum Benefit.
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5. Benefits Unsecured. All Benefits hereunder shall be paid from the
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general assets of the Bank, shall not be funded, by trust or otherwise. Neither
the Employee nor any Beneficiary shall have a right greater than that of a
general creditor of the Bank. Nothing herein shall be deemed to create a trust
of any kind or to create any fiduciary relationship whatsoever.
6. Disability. In the event that, prior to the termination of the
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Employee's employment with the Bank, the Committee shall determine that the
Employee has become Totally Disabled, such Committee may terminate the
Employee's employment by duly adopting (by a vote of a majority of the entire
Committee) and recording in its minutes a resolution to that effect and mailing
a copy thereof to the Employee at her regular post office address. Such
termination shall be effective on the date of the adoption of such resolution or
upon such later date as may be specified therein, but only if the Employee shall
be living on such date. Such termination shall be deemed a Retirement hereunder
as of the effective date of such termination.
7. Termination. (a) Notwithstanding any provisions hereof to the
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contrary, this Agreement shall terminate and be of no further force or effect in
the event that (i) the Employee voluntarily retires before she attains age 55;
(ii) the Employee is discharged by the Bank for Cause, or (ii) the Employee
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breaches any of the covenants contained in Section 8 hereof (said termination to
be effective even in the event that a court should find any of the provisions of
said Section 8 to be unenforceable; it being the intention of the parties that
this Agreement shall terminate if the Employee breaches any of the original
terms of Section 8 without regard to any judicial modification pursuant to
Section 8(b) hereof).
(b) For purposes of this Agreement, a discharge shall be for Cause if the
Committee shall determine (upon the majority vote of the entire Committee) that
any one or more of the following has occurred:
(i) The Employee shall have committed fraud, embezzlement,
misappropriation or breach of fiduciary duty against the Bank or against
any customer or depositor thereof, or shall have committed any such action
against any other person or entity and such action materially and adversely
reflects upon the business, affairs or reputation of the Bank or upon the
Employee's ability to perform her duties hereunder; or
(ii) The Employee shall have been convicted by a court of competent
jurisdiction of, or pleaded guilty or nolo contendere to, any felony or
crime involving moral turpitude;
(iii) The Employee shall have (A) materially failed to perform or
neglected her duties as Vice-President of the Bank on a regular basis or
(B) refused to carry out the duties assigned to her by the Board in
accordance with Section 2 hereof.
8. Non-Competition, Etc. (a) Employee hereby agrees that she for a
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period of 5 years from the date of Retirement will not directly or indirectly:
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(i) as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, or in any other
capacity whatsoever (other than as the holder of not more than one percent
(1%) of the total outstanding stock of a publicly held company), anywhere
in or within 75 miles of Brookline, Massachusetts, engage in the banking
business;
(ii) recruit, solicit or induce, or attempt to induce, any employee
or employees of the Bank to terminate their employment with, or otherwise
cease their relationship with, the Bank; or
(iii) solicit, divert or take away, or attempt to divert or to take
away, the business or patronage of any of the depositors, borrowers,
customers or prospective customers of the Bank.
(b) If any restriction set forth in Section 8(a) is found by any court of
competent jurisdiction to be unenforceable because it extends for too long a
period of time or over too great a range of activities of in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
(c) The restrictions contained in this Section 8 are necessary for the
protection of the business and goodwill of the Bank and are considered by
Employee to be reasonable for such purpose. Employee acknowledges, understands
and agrees that (i) the Bank operates a banking business in Brookline,
Massachusetts and its vicinity, and therefore the geographic coverage of the
restrictions contained herein are necessary for the protection of the Bank and
are reasonable and (ii) Employee's experience and capabilities are such that the
provisions of this Section 8 will not prevent Employee from earning a
livelihood.
(d) Employee hereby agrees that she at any and all times subsequent to
Retirement will not (i) make any disparaging or uncomplimentary remarks to any
other person about the Bank or its officers, directors or employees, or (ii)
disclose to any other person or entity any information relating to the Bank or
its operations which could be deemed confidential, or proprietary, it being
specifically acknowledged that customer and borrower lists, methods of operation
and salary information shall be deemed confidential and/or proprietary, but that
the foregoing is not intended to be an exclusive list of confidential or
proprietary information.
9. Other Benefits. Nothing contained herein shall be deemed to exclude
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the Employee from any supplemental compensation, bonus, pension, insurance,
severance pay or other benefit (including payments under the Current Plans) to
which otherwise she might be or might become entitled as an employee of the
Bank.
10. Additional Provisions. (a) This Agreement is a personal agreement and
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the rights and interests hereunder (except those of the Bank) may not be sold,
transferred, assigned, pledged or hypothecated. Benefits hereunder are not
subject to alienation, anticipation or assignment by Employee or any Beneficiary
and are not subject to being attached or reached and
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applied by any creditor. This Agreement shall be binding on the heirs,
executors and administrators of the Employee and on the successors and assigns
of the Bank. During the Employee's lifetime the parties hereto by mutual
agreement may amend, modify or rescind this Agreement without the consent of any
other person.
(b) This Agreement is intended to be unfunded and entered into by the
Bank primarily for the purpose of providing deferred compensation for Employee
as one of a select group of management or highly compensated employees within
the meaning of Section 201 (2) of the Employee Retirement Income Security Act of
1974 as amended ("ERISA"). Benefits are intended not to be taxable to Employee
under the Internal Revenue Code of 1986, as amended (the "Code") until paid.
This Agreement shall be construed and interpreted in a manner consistent with
the foregoing intentions.
(c) This Agreement shall not constitute an express or implied
contract of employment between the Bank and the Employee.
11. Arbitration. Any controversy or claim arising out of or relating to
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this Agreement or the breach thereof shall be settled by arbitration in the Town
of Brookline, Massachusetts in accordance with the rules then obtaining of the
American Arbitration Association, and a judgment upon the award may be entered
in any court having jurisdiction thereof.
12. Governing Law. This Agreement shall be governed by the laws of the
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Commonwealth of Massachusetts.
BROOKLINE SAVINGS BANK
By:/s/ Xxxxxxxx Xxxxx, Xx.
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/s/ Xxxxx X. Xxxxx
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Employee
