Exhibit 10.7
Change in Control agreement between The Massachusetts Co-operative Bank
and Xxxxxxx X. Xxxxxxxxxx
THE MASSACHUSETTS CO-OPERATIVE BANK
THREE YEAR CHANGE IN CONTROL AGREEMENT
This AGREEMENT is made effective as of December 22, 1998, by and
among The Massachusetts Co-operative Bank (the "Institution"), a
Massachusetts-chartered stock co-operative bank, with its principal
administrative office at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Xxxxxxx X. Xxxxxxxxxx ("Executive"), and Massachusetts Fincorp, Inc.
(the "Holding Company"), a corporation organized under the laws of the
State of Delaware which is the holding company of the Institution.
WHEREAS, the Institution recognizes the substantial contribution
Executive has made to the Institution and wishes to protect Executive's
position therewith for the period provided in this Agreement; and
WHEREAS, Executive has agreed to serve in the employ of the
Institution.
NOW, THEREFORE, in consideration of the contribution and
responsibilities of Executive, and upon the other terms and conditions
hereinafter provided, the parties hereto agree as follows:
1. TERM OF AGREEMENT.
The term of this Change in Control Agreement (the "Agreement") shall
be deemed to have commenced as of the date first above written and shall
continue for a period of thirty-six (36) full calendar months thereafter.
Commencing on the first anniversary date of this Agreement and continuing
at each anniversary date thereafter, the Board of Directors of the
Institution ("Board") may extend the Agreement for an additional year. The
Board will review the Agreement and Executive's performance annually for
purposes of determining whether to extend the Agreement, and the results
thereof shall be included in the minutes of the Board's meeting.
2. CHANGE IN CONTROL.
(a) Upon the occurrence of a Change in Control of the Institution
or the Holding Company (as herein defined) followed at any time during the
term of this Agreement by the termination of Executive's employment, other
than for Cause, as defined in Section 2(c) hereof, the provisions of
Section 3 shall apply. Upon the occurrence of a Change in Control,
Executive shall have the right to elect to voluntarily terminate his
employment at any time during the term of this Agreement following any
demotion, loss of title, office or significant authority, reduction in his
annual compensation or benefits, or relocation of his principal place of
employment by more than 25 miles from its location immediately prior to the
Change in Control; provided, however, the Executive may consent in writing
to any such demotion, loss, reduction or relocation. The effect of any
written consent of the Executive under this Section 2 (a) shall be strictly
limited to the terms specified in such written consent.
(b) For purposes of this Agreement, a "Change in Control" shall
mean an event of a nature that: (i) would be required to be reported in
response to Item 1(a) of the current report on Form 8-K, as in effect on
the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a Change in Control of
the Bank or the Holding Company within the meaning of the Change in Bank
Control Act and the Rules and Regulations promulgated by the Federal
Deposit Insurance Corporation ("FDIC") at 12 C.F.R. [Section Sign] 303.4(a)
with respect to the Bank and the Board of Governors of the Federal Reserve
System ("FRB") at 12 C.F.R. [Section Sign] 225.41(b) with respect to the
Holding Company, as in effect on the date hereof; or (iii) results in a
transaction requiring prior FRB approval under the Bank Holding Company Act
of 1956 and the regulations promulgated thereunder by the FRB at 12 C.F.R.
[Section Sign] 225.11, as in effect on the date hereof except for the
Holding Company's acquisition of the Bank; or (iv) without limitation such
a Change in Control shall be deemed to have occurred at such time as (A)
any "person" (as the term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-
3 under the Exchange Act), directly or indirectly, of securities of the
Bank or the Holding Company representing 20% or more of the Bank's or the
Holding Company's outstanding securities except for any securities of the
Bank purchased by the Holding Company in connection with the conversion of
the Bank to the stock form and any securities purchased by any tax
qualified employee benefit plan of the Bank; or (B) individuals who
constitute the Board of Directors on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof,
provided that any person becoming a director subsequent to the date hereof
whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election
by the Holding Company's stockholders was approved by the same Nominating
Committee serving under an Incumbent Board, shall be, for purposes of this
clause (B), considered as though he were a member of the Incumbent Board;
or (C) a plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or the Holding Company or similar
transaction occurs in which the Bank or Holding Company is not the
resulting entity; or (D) solicitations of shareholders of the Holding
Company, by someone other than the current management of the Holding
Company, seeking stockholder approval of a plan or reorganization, merger
of consolidation of the Holding Company or Bank or similar transaction with
one or more corporations as a result of which the outstanding shares of the
class of securities then subject to the plan or transaction are exchanged
for or converted into cash or property or securities not issued by the Bank
or the Holding Company shall be distributed; or (E) a tender offer is made
for 20% or more of the voting securities of the Bank or the Holding
Company.
(c) Executive shall not have the receive termination benefits
pursuant to Section 3 hereof upon Termination for Cause. The term
"Termination for Cause" shall mean termination because of Executive's
personal dishonesty, willful misconduct, any breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order or material
breach of any provision of this Agreement. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and
until there shall have been delivered to him a Notice of Termination which
shall include a copy of a resolution duly adopted by the affirmative vote
of not less than a majority of the members of the Board at a meeting of the
Board called and held for that purpose (after reasonable notice to
Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of conduct justifying Termination for Cause and
specifying the particulars thereof in detail. Executive shall not have the
right to receive compensation or other benefits for any period after
Termination for Cause. During the period beginning on the date of the
Notice of Termination for Cause pursuant to Section 4 hereof through the
Date of Termination, stock options and related limited rights granted to
Executive under any stock option plan shall not be exercisable nor shall
any unvested awards granted to Executive under any stock benefit plan of
the Institution, the Holding Company or any subsidiary or affiliate thereof
vest. At the Date of Termination, such stock options and related limited
rights and such unvested awards shall become null and void and shall not be
exercisable by or delivered to Executive at any time subsequent to such
Date of Termination for Cause.
3. TERMINATION BENEFITS.
(a) Upon the occurrence of a Change in Control, followed at any
time during the term of this Agreement by termination of the Executive's
employment due to: (1) Executive's dismissal or (2) Executive's voluntary
termination pursuant to Section 2(a), unless such termination is due to
Termination for Cause, the Institution and the Holding Company shall pay
Executive, or in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, a sum equal to three (3)
times Executive's Average Annual Compensation (as defined herein) for the
five most recent taxable years that Executive has been employed by the
Institution or such lesser number of years in the event that Executive
shall have been employed by the Institution for less than five years, such
"Average Annual Compensation" shall include all taxable income paid by the
Bank or Holding Company, including but not limited to any base salary,
bonuses, and commissions paid or to be paid to Executive, as well as
contributions on Executive's behalf to any pension and/or profit sharing
plan, severance payments, retirement payments, and fringe benefits paid or
to be paid to the Executive in any such year. At the election of Executive,
which election is to be made prior to a Change in Control, such payment
shall be made in a lump sum. In the event that no election is made, payment
to Executive will be made on a monthly basis in approximately equal
installments during the remaining term of this Agreement.
(b) Upon the occurrence of a Change in Control of the Institution
or the Holding Company followed at any time during the term of this
Agreement by Executive's voluntary or involuntary termination of
employment, other than for Termination for Cause, the Institution shall
cause to be continued life, medical and disability coverage substantially
identical to the coverage maintained by the Institution or Holding Company
for Executive prior to his severance, except to the extent such coverage
may be changed in its application to all Institution or Holding Company
employees on a nondiscriminatory basis. Such coverage and payments shall
cease upon the expiration of thirty-six (36) full calendar months from the
Date of Termination.
(c) Notwithstanding the preceding paragraphs of this Section 3, in
no event shall the aggregate payments or benefits to be made or afforded to
Executive under said paragraphs (the "Termination Benefits") constitute an
"excess parachute payment" under Section 280G of the Internal Revenue Code
of 1986, as amended, or any successor thereto, and in order to avoid such a
result Termination Benefits will be reduced, if necessary, to an amount
(the "Non-Triggering Amount"), the value of which is one dollar ($1.00)
less than an amount equal to three (3) times Executive's "base amount," as
determined in accordance with said Section 280G. The allocation of the
reduction required hereby among the Termination Benefits provided by the
preceding paragraphs of this Section 3 shall be determined by Executive.
4. NOTICE OF TERMINATION.
(a) Any purported termination by the Institution or by Executive in
connection with a Change in Control shall be communicated by Notice of
Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a written notice which shall indicate
the specific termination provision in this Agreement relied upon and shall
set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the
provision so indicated.
(b) "Date of Termination" shall mean the date specified in the
Notice of Termination (which, in the instance of Termination for Cause,
shall not be less than thirty (30) days from the date such Notice of
Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other
party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally determined,
either by mutual written agreement of the parties, by a binding arbitration
award, or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal
having been perfected) and provided further that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in
good faith and the party giving such notice pursues the resolution of such
dispute with reasonable diligence. Notwithstanding the pendency of any such
dispute in connection with a Change in Control, in the event that the
Executive is terminated for reasons other than Termination for Cause, the
Institution will continue to pay Executive his full compensation in effect
when the notice giving rise to the dispute was given (including, but not
limited to his annual salary) and continue him as a participant in all
compensation, benefit and insurance plans in which he was participating
when the notice of dispute was given, until the earlier of: (1) the
resolution of the dispute in accordance with this Agreement; or (2) the
expiration of the remaining term of this Agreement as determined as of the
Date of Termination.
5. SOURCE OF PAYMENTS.
It is intended by the parties hereto that all payments provided in
this Agreement shall be paid in cash or check from the general funds of the
Institution. Further, the Holding Company guarantees such payment and
provision of all amounts and benefits due hereunder to Executive and, if
such amounts and benefits due from the Institution are not timely paid or
provided by the Institution, such amounts and benefits shall be paid or
provided by the Holding Company.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Institution and
Executive, except that this Agreement shall not affect or operate to reduce
any benefit or compensation inuring to Executive of a kind elsewhere
provided. No provision of this Agreement shall be interpreted to mean that
Executive is subject to receiving fewer benefits than those available to
him without reference to this Agreement.
Nothing in this Agreement shall confer upon Executive the right to
continue in the employ of Institution or shall impose on the Institution
any obligation to employ or retain Executive in its employ for any period.
7. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation, or to
execution, attachment, levy, or similar process or assignment by operation
of law, and any attempt, voluntary or involuntary, to affect any such
action shall be null, void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive, the Institution and their respective successors and assigns.
8. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party
charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
such waiver shall operate only as to the specific term or condition waived
and shall not constitute a waiver of such term or condition for the future
or as to any act other than that specifically waived.
9. REQUIRED REGULATORY PROVISIONS.
Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
[Section Sign]1828(k), 12 C.F.R. Part 359 and 12 C.F.R. Section 545.121 and
any rules and regulations promulgated thereunder.
10. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of
any provision, is held invalid, such invalidity shall not affect any other
provision of this Agreement or any part of such provision not held so
invalid, and each such other provision and part thereof shall to the full
extent consistent with law continue in full force and effect.
11. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely
for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement. In addition,
references to the masculine shall apply equally to the feminine.
12. GOVERNING LAW.
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by the laws of the Commonwealth of
Massachusetts applicable to contracts entered into and to be performed
entirely within the Commonwealth of Massachusetts.
13. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive
within fifty (50) miles from the location of the Institution's main office,
in accordance with the rules of the American Arbitration Association then
in effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction; provided, however, that Executive shall be entitled to
seek specific performance of his right to be paid until the Date of
Termination during the pendency of any dispute or controversy arising under
or in connection with this Agreement.
14. PAYMENT OF COSTS AND LEGAL FEES.
All reasonable costs and legal fees paid or incurred by Executive
pursuant to any dispute or question of interpretation relating to this
Agreement shall be paid or reimbursed by the Institution (which payments
are guaranteed by the Holding Company pursuant to Section 5 hereof) if
Executive is successful on the merits pursuant to a legal judgment,
arbitration or settlement.
15. INDEMNIFICATION.
(a) The Bank shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense and shall indemnify
Executive (and his heirs, executors and administrators) as permitted under
federal law against all expenses and liabilities reasonably incurred by him
in connection with or arising out of any action, suit or proceeding in
which he may be involved by reason of his having been a director or officer
of the Bank (whether or not he continues to be a director or officer at the
time of incurring such expenses or liabilities), such expenses and
liabilities to include, but not be limited to, judgments, court costs and
attorneys' fees and the cost of reasonable settlements.
(b) Any payments made to Executive pursuant to this Section are
subject to and conditioned upon compliance with 12 U.S.C. Section 1828(k),
12 C.F.R. Part 359 and 12 C.F.R. Section 545.121 and any rules or
regulations promulgated thereunder.
16. SUCCESSOR TO THE INSTITUTION.
The Institution shall require any successor or assignee, whether
direct or indirect, by purchase, merger, consolidation or otherwise, to all
or substantially all the business or assets of the Institution, expressly
and unconditionally to assume and agree to perform the Institution's
obligations under this Agreement, in the same manner and to the same extent
that the Institution would be required to perform if no such succession or
assignment had taken place.
SIGNATURES
IN WITNESS WHEREOF, The Massachusetts Co-operative Bank and
Massachusetts Fincorp, Inc. have caused this Agreement to be executed by
their duly authorized officers, and Executive has signed this Agreement, on
the 22nd day of December, 1998.
ATTEST: THE MASSACHUSETTS CO-OPERATIVE BANK
/s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------ ---------------------------
Xxxxxxxx X. Xxxxxxxx Xxxx X. Xxxxx
For the Entire Board of
Directors
SEAL
ATTEST: MASSACHUSETTS FINCORP, INC.
(Guarantor)
/s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------ ---------------------------
Xxxxxxxx X. Xxxxxxxx Xxxx X. Xxxxx
For the Entire Board of
Directors
SEAL
WITNESS:
/s/ Xxxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Bordemieck
------------------------------ --------------------------------
Xxxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxxxx
Executive
