EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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THIS AGREEMENT entered into this 17th day of December, 1991, by and between
The Sandwich Co-operative Bank (hereinafter referred to as the "Bank") and Xxxxx
X. Xxxxxxx (hereafter referred to as the "Employee").
WHEREAS, the Employee is being employed by the Bank as Senior Vice
President - Senior Loan officer and is experienced in all phases of the lending
operations of the Bank; and
WHEREAS, the parties desire by this writing to set forth the employment
relationship of the Bank and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is employed as the Senior Vice President 7
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Senior Loan Officer of the Bank. The Employee shall render administrative and
management . services to the Bank such as are customarily performed by persons
situated in a similar executive capacity. The Employee shall also promote, by
entertainment or otherwise, as and to the extent permitted by law, the business
of the Bank. The Employee's other duties shall be such as the Board of
Directors may from time to time reasonably direct, including normal duties as an
officer of the Bank.
2. Base Compensation. The Bank agrees to pay the Employee during the
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term of this Agreement a salary at the rate of $76,000 per annum, payable in
cash not less frequently than monthly; provided, that the rate of such salary
shall be reviewed by the Board of Directors of the Bank not less often than
annually, and Employee shall be entitled to receive annually an increase at such
percentage or in such an amount as the Board of Directors in its sole discretion
may decide.
3. Discretionary Bonuses. The Employee shall be entitled to participate
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in an equitable manner with all other senior management employees of the Bank in
discretionary bonuses that may be authorized and declared by the Board of
Directors of the Bank to its senior management employees from time to time. No
other compensation provided for in this Agreement shall be deemed a substitute
for the Employee's right to participate in such discretionary bonuses when and
as declared by the Board of Directors.
4. (a) Participation in Retirement and Medical Plans. The Employee shall
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be entitled to participate in any Plan of the Bank relating to pension, profit-
sharing, or other retirement benefits and medical coverage or reimbursement
plans that the Bank may adopt for the benefit of its employees.
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(b) Employee Benefits; Expenses. The Employee shall be eligible to
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participate in any fringe benefits which may be or may become applicable to the
Bank's executive employees, including by example, participation in any stock
option or incentive plans adopted by the Board of Directors, club memberships, a
reasonable expense account, and any other benefits which are commensurate with
the responsibilities and functions to be performed by the Employee under this
Agreement. The Bank shall reimburse Employee for all reasonable out-of-pocket
expenses which Employee shall incur in connection with his services for the
Bank.
5. Term. The term of employment of Employee under this Agreement shall
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be for the period commencing on December 17, 1991 and ending thirty-six (36)
months thereafter on December 17, 1994. Not less than three (3) months prior to
the expiration date of this Agreement or at such other times as may be mutually
agreed upon, the Employee and the Bank shall discuss the terms and conditions
for any renewal or extension of this Agreement. Additionally, on each annual
anniversary date from the date of commencement of this Agreement, the term of
employment shall automatically be extended for an additional one year period
beyond the then effective expiration date unless written notice from the Bank or
the Employee is received prior to such anniversary date advising the other party
that this Agreement shall not be further extended. Any such written notice
shall not effect any prior extensions of the term of employment hereunder.
6. Loyalty; Noncompetition.
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(a) The Employee shall devote his full time and attention to the
performance of his employment under this Agreement. During the term of
Employee's employment under this Agreement, the Employee shall not engage in any
business or activity contrary to the business affairs or interests of the Bank.
(b) Nothing contained in this Paragraph 6 shall be deemed to prevent
or limit the right of Employee to invest in the capital stock or other
securities of any business dissimilar from that of the Bank, or, solely as a
passive or minority investor, in any business.
7. Standards. The Employee shall perform his duties under this Agreement
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in accordance with such reasonable standards expected of employees with
comparable positions in comparable organizations and as may be established from
time to time by the Bank's Board of Directors. The Bank will provide Employee
with the working facilities and staff customary for similar executives and
necessary for him to perform his duties.
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8. Vacation and Sick Leave. At such reasonable times as the Board of
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Directors shall in its discretion permit, the Employee shall be entitled,
without loss of pay, to absent himself voluntarily from the performance of his
employment under this Agreement, all such voluntary absences to count as
vacation time; provided that:
(a) The Employee shall be entitled to an annual vacation in accordance
with the policies as are periodically established by the Board of Directors for
senior management employees of the Bank.
(b) The Employee shall not be entitled to receive any additional
compensation from the Bank on account of his failure to take a vacation; the
Employee shall not be entitled to accumulate unused vacation from one fiscal
year to the next except to the extent authorized by the Board of Directors for
senior management employees of the Bank.
(c) In addition to the aforesaid paid vacations, the Employee shall be
entitled without loss of pay, to absent himself voluntarily from the performance
of his employment with the Bank for such additional periods of time and for such
valid and legitimate reasons as the Board of Directors in its discretion may
determine. Further, the Board of Directors shall be entitled to grant to the
Employee a leave or leaves of absence with or without pay at such time or times
and upon such terms and conditions as the Board of Directors in its discretion
may determine.
(d) In addition, the Employee shall be entitled to an annual sick
leave benefit as established by the Board of Directors for senior management
employees of the Bank. In the event any sick leave benefit shall not have been
used during any year, such leave shall accrue to subsequent years only to the
extent authorized by the Board of Directors. Upon termination of his
employment, the Employee shall not be entitled to receive any additional
compensation from the Bank for any unused sick leave benefits.
9. Termination and Termination Pay.
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The Employee's employment under this Agreement shall be terminated
upon the following occurrences:
(a) The death of the Employee during the term of this Agreement, in
which event the Employee's estate shall be entitled to receive the compensation
due the Employee through the last day of the calendar month in which his death
shall have occurred, and any vested rights and benefits of the Employee.
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(b) Employee's employment under this Agreement may be terminated at
any time by a decision of the Board of Directors of the Bank for conduct not
constituting termination for Just Cause. In the event Employee's employment
under this Agreement is terminated by the Board of Directors without Just Cause,
the Bank shall be obligated to continue to pay the Employee his salary, up to
the date of termination of the term (including any renewal term) of this
Agreement.
(c) The Bank reserves the right to 'terminate this Agreement at any
time for Just Cause. Termination for "Just Cause" shall mean termination for
personal dishonesty, misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, regulation (other than a law, rule or regulation relating to a
traffic violation or similar offense), final cease-and-desist order, or material
breach of any provision of this Agreement. Subject to the provisions of Section
11 hereof, in the event this Agreement is terminated for Just Cause, the Bank
shall only be obligated to continue to pay the Employee his salary, up to the
date of termination, and the vested rights of the parties shall not be affected.
10. Disability. If the Employee shall become disabled or incapacitated to
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the extent that he is unable to perform his duties hereunder, by reason of a
medically determinable physical or mental impairment, as determined by a doctor
engaged by the Board of Directors, Employee shall nevertheless continue to
receive the following percentages of his compensation, inclusive of any benefits
which may be payable to Employee under the provisions of disability insurance
coverage in effect for Bank employees, under Paragraph 2 of this Agreement for
the following periods of his disability: 60% for the remaining term of this
Agreement.. Upon returning to active full-time employment, the Employee's full
compensation as set forth in this Agreement shall be reinstated. In the event
that said Employee returns to active employment on other than a full-time basis,
then his compensation (as set forth in Paragraph 2 of this Agreement) shall be
reduced in proportion to the time spent in said employment, or as shall
otherwise be agreed to by the parties.
11. Change in Control.
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(a) Notwithstanding any provision herein to the contrary, in the event
of involuntary termination of Employee's employment under this Agreement in
connection with, or within six (6) months after, any change in control of the
Bank which has not been approved in advance by a two-thirds (2/3) vote of the
full Board of Directors, or in the event of voluntary termination by the
Employee in connection with, or within six (6) months after, any change in
control of the Bank which has not been approved in advance by a two-thirds (2/3)
vote of the full Board of Directors, Employee shall be paid an amount equal to
the difference between (i) the product of 2.99 times the Employee's "base
amount" as defined in Section 28OG(b)(3) of the Internal Revenue Code of 1986,
as amended (the "Code"), and (ii) the sum of any other
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parachute payments (as defined under Section 28OG(b)(2) of the Code) that the
Employee receives on account of the change in control. Said sum shall be paid,
at the option of Employee, either in one (1) lump sum within thirty (30) days of
such termination, or in periodic payments over the remaining term of this
Agreement as if Employee's employment had not been terminated. The term
"control" shall refer to the ownership, holding or power to vote more than 25%
of the Bank's voting stock, the control of the election of a majority of the
Bank's directors, or the exercise of a controlling influence over the management
or policies of the Bank by any person or by persons acting as a group within the
meaning of Section 13(d) of the Securities Exchange Act of 1934. The term
"person" means an individual other than the Employee, or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of entity not
specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to the
contrary, Employee may voluntarily terminate his employment under this Agreement
following a change in control of the Bank, whether approved in advance by the
Board of Directors or otherwise (as defined in Paragraph 11(a) of this
Agreement), and shall thereupon be entitled to receive the payment described in
Paragraph 11(a) of this Agreement, upon the occurrence, or within sixty (60)
days thereafter, of any of the following events, which have not been consented
to in advance by the Employee in writing: (I) if Employee would be required to
move his personal residence or perform his principal executive functions more
than thirty-five (35) miles from Sandwich, Massachusetts; (ii) if in the
organizational structure of the Bank Employee would be required to report to a
person or persons other than the President and/or Board of Directors of the
Bank; (iii) if the Bank should fail to maintain existing employee benefits
plans, including material fringe benefit, stock option and retirement plans;
(iv) if Employee would be assigned duties and responsibilities other than those
normally associated with his position as Senior Vice President - Senior Loan
Officer; or (v) if Employee's responsibilities or authority have in any way been
materially diminished or reduced.
(c) In the event any dispute shall arise between the Employee and the
Bank as to the terms or interpretation of this Agreement, including this-
Paragraph 11, whether instituted by formal legal proceedings or otherwise,
including any action taken by Employee to enforce the terms of this Paragraph 11
or in defending against any action taken by the Bank, the Bank shall reimburse
Employee for all costs and Expenses, including reasonable attorneys' fees,
arising from such dispute, proceedings or actions, notwithstanding the ultimate
outcome thereof. Such reimbursement shall be paid within 10 days of Employee
furnishing to the Bank written evidence, which may be in the form, among other
things, of a canceled check or receipt, of any costs or expenses incurred by
Employee. Any such request for reimbursement by Employee shall be made no more
frequently than at sixty (60) day intervals.
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12. Successors and Assigns.
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(a) This Employment Agreement, which shall supersede and replace all
previous employment agreements between the parties, shall inure to the benefit
of and be binding upon any corporate or other successor of the Bank which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets of the Bank.
(b) Since the Bank is contracting for the unique and personal skills
of the Employee, the Employee shall be precluded from assigning or delegating
his rights or duties hereunder without first obtaining the written consent of
the Bank.
13. Amendments. No amendments or additions to this Agreement shall be
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binding unless made in writing and signed by both parties, except as herein
otherwise specifically provided.
14. Applicable Law. This Agreement shall be governed by all respects
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whether as to validity, construction, capacity, performance or otherwise, by the
laws of the Commonwealth of Massachusetts, except to the extent that Federal law
shall be deemed to apply.
15. Severability. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
16. Entire Agreement. This Agreement together with any understanding or
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modifications thereof as approved to in writing by the parties, shall constitute
the entire agreement between the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first hereinabove written.
SANDWICH CO-OPERATIVE BANK
ATTEST: By: Xxxxxxxx X. Xxxxxx
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/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Clerk
WITNESS:
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
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Employee
