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Exhibit 10.19
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SPECIAL TERMINATION AGREEMENT
THIS AGREEMENT, dated as of April 7, 1997, by and among PEOPLE'S
BANCSHARES, INC., a Massachusetts corporation (the "Company"), PEOPLE'S SAVINGS
BANK OF BROCKTON, a Massachusetts savings bank with its main office in New
Bedford, Massachusetts (the "Bank") (the Bank and the Company being hereinafter
collectively referred to as the "Employers"), and XXXXXXX X. XXXXXXXXXXX (the
"Executive"), an individual presently employed by both the Company and the Bank
in the capacity of President and Chief Executive Officer.
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 services rendered and 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 Employers, the Employers are
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 if any of the following events has occurred:
(i) if there has occurred a change in control of either of the
Employers within the meaning of 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regulation is no longer in effect, any regulations promulgated by the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 (other than in the case of the Bank, the
Company's ownership of the capital stock of the Bank);
(ii) when any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the 0000 Xxx) becomes a "beneficial owner" (as such term is
defined in Rule 13d-3 promulgated under the 1934 Act), directly or
indirectly, of securities of either of the Employers representing
twenty-five percent (25%) or more of the total number of votes that may be
cast for the election of directors of the Company or the Bank (other than
in the case of the Bank, the Company's ownership of the capital stock of
the Bank);
(iii) during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who are
Continuing Directors (as hereinafter defined) cease for any reason to
constitute at least a majority of the Board of Directors of the Company or
the Bank. For this purpose, a "Continuing Director" shall mean (a) an
individual who was a director of the Company or the Bank at the beginning
of such period or (b) any new director (other than a director designated by
a person who has entered into an agreement with the Company or the Bank, as
the case may be, to effect a transaction described in clause (ii), (iv) or
(v) of this Section 2) whose election by the Board or nomination for
election by the stockholders of the Company or the Bank, as the case may
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be, 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 such
period or whose election or nomination for election was previously so
approved;
(iv) the stockholders of the Company or the Bank approve a merger or
consolidation of the Company or the Bank, as the case may be, with any
other corporation, other than (a) a merger or consolidation which would
result in the voting securities of the Company or the Bank, as the case may
be, outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of
the surviving entity) more than 80% of the combined voting power of the
voting securities of the Company or the Bank, as the case may be, or such
surviving entity outstanding immediately after such merger or consolidation
or (b) a merger or consolidation effected to implement a recapitalization
of the Company or the Bank (or similar transaction) in which no "person"
(as hereinabove defined) acquires more than 30% of the combined voting
power of the then outstanding securities of the Company or the Bank, as the
case may be; or
(v) the stockholders of the Company or the Bank approve a plan of
complete liquidation of the Company or the Bank or an agreement for the
sale or disposition by the Company or the Bank of all or substantially all
of the assets of the Company or the Bank, as the case may be.
3. TERMINATING EVENT. A "Terminating Event" shall mean (a) termination by
either of the Employers of the employment of the Executive with either of the
Employers for any reason other than (i) death, (ii) deliberate dishonesty of the
Executive with respect to either of the Employers or any subsidiary or affiliate
of either, or (iii) conviction of the Executive of a crime involving moral
turpitude, or (b) resignation of the Executive from the employ of either of the
Employers, while the Executive is not receiving payments or benefits from the
Employers by reason of the Executive's disability, subsequent to the occurrence
of any of the following events:
(i) 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
(ii) A reasonable determination by the Executive that, as a result of a
Change in Control, the Executive is unable to exercise the
responsibilities, authorities, powers, functions or duties exercised
by the Executive immediately prior to such Change in Control; or
(iii)A decrease in the total annual compensation payable by the Employers
to the Executive other than as a result of a decrease in compensation
payable to the Executive and to all other executive officers of the
Employers on a comparable basis as a result of the Employers'
financial performance; or
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(iv) The relocation of the Employers' office at which the Executive is
principally employed immediately prior to the Change in Control to a
location more than 25 miles from New Bedford, Massachusetts.
4. SEVERANCE PAYMENT. Subject to the provisions of Section 5 below, in the
event a Terminating Event occurs within three (3) years after a Change in
Control, the Employers shall pay to the Executive an aggregate amount equal to
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,
payable in one lump-sum payment on the date of such termination or resignation;
PROVIDED, HOWEVER, that the Employers shall not be required to make any lump-sum
payment hereunder to the extent the Employers are limited or prohibited in
making such payment by regulation or order of any regulatory agency having
jurisdiction over either of the Employers or by applicable law.
5. LIMITATION ON BENEFITS.
(a) 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 and/or any other agreement or plan pursuant to which the Executive 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 in the aggregate, 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.
(b) If any dispute between the Employers and the Executive as to any of
the amounts to be determined under this Section 5, or the method of calculating
such amounts, cannot be resolved by the Employers and the Executive, either the
Employers or the Executive after giving three days written notice to the other,
may refer the dispute to a partner in the Boston 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 amount to be determined
under Section 5(a) 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.
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6. 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.
7. TERM. This Agreement shall take effect as of the date first above
written, and shall terminate upon the earlier of (a) the termination by the
Employers of the employment of the Executive because of death, deliberate
dishonesty of the Executive with respect to either of the Employers or any
subsidiary or affiliate of either, or conviction of the Executive of a crime
involving moral turpitude, (b) the resignation or termination of the Executive
for any reason prior to a Change in Control, or (c) 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(b)(i)-(iv) of this Agreement.
8. WITHHOLDING. All payments made by the Employers under this Agreement
shall be net of any tax or other amounts required to be withheld by the
Employers under applicable law.
9. 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 Employers, 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 9. 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 Employers shall pay (or the Executive shall be
entitled to recover from the Employers, 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. This provision shall not apply to Section 5(b), except in the event that
the Employers and the Executive cannot agree on the selection of the accounting
partner described in said section.
10. ASSIGNMENT; SUCCESSORS AND ASSIGNS, ETC. Neither the Employers 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
parties. This Agreement shall inure to the benefit of and be binding upon the
Employers and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns. In the event of the Executive's
death prior to the completion by the Employers of all payments due to the
Executive under this Agreement, the Employers shall continue such payments to
the Executive's beneficiary designated in writing
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to the Employers prior to the Executive's death (or to the Executive's estate,
if the Executive fails to make such designation).
11. 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.
12. 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.
13. 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
Employers or, in the case of either of the Employers, at its main office,
attention of the Clerk.
14. 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 between the Employers and
the Executive and shall 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
the Executive may then have with the Employers, PROVIDED, HOWEVER, that if there
is a Terminating Event under Section 3 hereof, the Executive may elect either to
receive the severance payment provided under Section 4 or such termination
benefits as the Executive may have under any such employment agreement, but may
not elect to receive both.
15. AMENDMENT. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by duly authorized representatives of
each of the Employers.
16. ALLOCATION OF OBLIGATIONS BETWEEN EMPLOYERS. The obligations of the
Employers under this Agreement are intended to be the joint and several
obligations of the Bank and the Company and the Employers shall, as between
themselves, allocate these obligations in a manner agreed upon by them.
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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.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Employers and the Executive as of the date first above written.
PEOPLE'S BANCSHARES, INC.
By: \s\ Xxxxx X. Xxxxx
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Title: Chief Financial Officer
PEOPLE'S SAVINGS BANK OF BROCKTON
By: \s\ Xxxxx X. Xxxxx
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Title: Chief Financial Officer
EXECUTIVE:
\s\ Xxxxxxx X. Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx
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