Exhibit 10.13
CHANGE IN CONTROL PROTECTION AGREEMENT
AGREEMENT effective as of March 19, 1997 by and between Boston Private
Bancorp, Inc., a Massachusetts corporation (the "Company"), and Xxxxxx X.
Xxxxxxx, an individual (the "Executive").
WHEREAS, the Executive is employed as a Senior Vice President of the
Company; and
WHEREAS, the Company considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel by
minimizing the uncertainty, departures or distractions of management personnel
associated with a Change in Control (as hereinafter defined);
NOW THEREFORE, the Company and the Executive, in consideration of the
premises and mutual covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
agree as follows:
1. CHANGE IN CONTROL. A "Change in Control" shall be deemed to have
occurred in any one of the following events:
(a) any "person" (as such term is defined in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "Act")) (other than the Company, any
trustee or other fiduciary holding securities under an employee benefit plan or
trust of the Company, or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company) becomes a "beneficial owner" (as such term is
defined in Rule 13d-3 promulgated under the Act), directly or indirectly, of
securities of the Company representing at least twenty five percent (25%) or
more of the combined voting power of the Company's then outstanding securities;
(b) persons who, as of March 19, 1997, constituted the Company's Board (the
"Incumbent Board") cease for any reason, including without limitation, as a
result of a tender offer, proxy contest, merger or similar transaction, to
constitute at least a majority of the Board of Directors of the Company,
provided that any person becoming a director of the Company subsequent to March
19, 1997 whose election or nomination for election was approved by at least a
majority of the directors then comprising the Incumbent Board shall, for
purposes of this Agreement, be considered a member of the Incumbent Board; or
(c) the stockholders of the Company shall approve (i) any consolidation or
merger of the Company or its subsidiaries where the stockholders of the Company,
immediately prior to the consolidation or merger, would not, immediately after
the consolidation or merger, beneficially own (as such term is defined in Rule
13d-3 under the Act), directly or indirectly, shares representing in the
aggregate 80% or more of the voting shares of the corporation issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any), (ii) any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated
or arranged by any party as a single plan) of all or substantially all of the
assets of the Company or (iii) any plan or proposal for the liquidation or
dissolution of the Company.
2. TERMINATING EVENT. A "Terminating Event" shall mean any of the events
provided in this Section 2 occurring subsequent to a Change in Control as
defined in Section 1:
(a) termination by the Company of the employment of the Executive with the
Company for any reason other than (i) removal of the Executive by the federal or
state banking regulators, and/or a permanent injunction prohibiting the
Executive from participating in the conduct and affairs of the Company or any of
its subsidiaries by an order issued by appropriate banking regulators, or (ii)
conviction of the Executive of, or plea of guilty or nolo contendere by the
Executive to, a felony, or (iii) dishonest acts against the Company or any of
its subsidiaries, or (iv) willful gross misconduct which is likely to cause
financial loss to the Company or any of its subsidiaries or to cause damage to
the business reputation of the Company or any of its subsidiaries, or (v)
willful and repeated misconduct or gross neglect constituting bad faith in
performing the Executive's duties with the Company, or (vi) breach of fiduciary
duty involving personal profit to the Executive or (vii) the failure by the
Executive to perform his full-time duties with the Company by reason of his
death, disability or retirement; PROVIDED, however, that a Terminating Event
shall not be deemed to have occurred pursuant to this Section 2(a) solely as a
result of the Executive being an employee of any direct or indirect successor to
the business or assets of the Company, rather than continuing as an employee of
the Company following a Change in Control. For purposes of clauses (iv) and (v)
of this Section 2(a), no act, or failure to act, on the Executive's part shall
be deemed "willful" unless done, or omitted to be done, by the Executive without
reasonable belief that the Executive's act, or failure to act, was in the best
interest of the Company and any of its subsidiaries. For purposes of clause
(vii) of this Section 2(a) hereof, "disability" shall mean the Executive's
incapacity due to physical or mental illness which has caused the Executive to
be unable to carry out the full-time performance of his duties with the Company.
Disagreement regarding a determination of disability shall be subject to the
certification of a qualified medical doctor agreed to by the Company and the
Executive, or, in the event of the Executive's incapacity to designate a doctor,
the Executive's legal representative. In the absence of an agreement between the
Company and the Executive in designating a doctor, each party shall nominate a
qualified medical doctor, and the two doctors so nominated shall select a third
doctor, who shall make the determination as to the disability of the Executive.
For purposes of clause (vii) of this Section 2(a) "retirement" shall mean
termination of the Executive's employment in accordance with the Company's
retirement policy, not including early retirement, generally applicable to its
salaried employees, as in effect immediately prior to the Change in Control, or
in accordance with any retirement arrangement established with respect to the
Executive with the Executive's express written consent;
(b) termination by the Executive of the Executive's employment with the
Company for Good Reason. "Good Reason" shall mean the occurrence of any of the
following events:
(i) a significant adverse change, not consented to by the Executive,
in the nature or scope of the Executive's responsibilities, authorities, powers,
title, functions or duties from the responsibilities, authorities, powers,
title, functions or duties exercised by the Executive immediately prior to the
Change in Control; or
2
(ii) 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
(iii) an attempt by the Company to relocate the Executive to, or to
require him to perform regular services, at any location that is more than
twenty-five (25) miles from Boston, Massachusetts; or
(iv) except as required by law, the failure by the Company or any of
its subsidiaries to continue in effect any benefits or prerequisites, or any
pension, life insurance, medical insurance or disability plan in which the
Executive was participating immediately prior to the Change in Control unless
the Company or its successor provides the Executive with a plan or plans that
provide substantially similar benefits, or the taking of any action by the
Company that would adversely affect the Executive's benefits under any such
plans or deprive the Executive of any material fringe benefit enjoyed by the
Executive immediately prior to the Change in Control; or
(v) the failure by the Company to obtain an effective agreement from
any successor to assume and agree to perform this Agreement.
3. SEVERANCE PAYMENT. In the event a Terminating Event occurs within three
(3) years after a Change in Control,
(a) the Company shall pay to the Executive an amount equal to 2.5 times the
average annual gross compensation of the Executive for the five (5) most recent
taxable years preceding a Change in Control. Said amount shall be paid in one
lump sum payment no later than five (5) days following the date of the
Terminating Event;
(b) the Company shall pay to the Executive a pro-rata bonus for the year in
which the Terminating Event occurs (the "Termination Year"), payable as soon as
practicable, and determined by multiplying the bonus the Executive received for
the year immediately prior to the Termination Year by a fraction, the numerator
of which is the number of days the Executive was employed during the Termination
Year and the denominator of which is 365;
(c) the Company shall continue the Executive's medical, life insurance and
retirement and pension accrual benefits and all other benefits of the Executive
under any of the Company's medical benefit plans, life insurance plans,
disability income plans, retirement plans, benefits equalization plan, vacation
plans, expense reimbursement plans or other employee benefit plans
(collectively, the "Employee Benefit Plans" and each individually an "Employee
Benefit Plan"), upon the same terms as in effect on the date of the Terminating
Event through three (3) years following a Change in Control. Solely for purposes
of benefits continuation under the Employee Benefit Plans, the Executive shall
be deemed to be an active employee. To the extent that benefits required under
this Section 3(c) cannot be provided under the terms of any Employee Benefit
Plan, the Company shall enter into alternative arrangements that will provide
the Executive with comparable benefits; and
(d) any outstanding unvested stock options and restricted stock awards
under either the 1988 Employee Incentive Stock Option Plan, the Company's 1997
Long-Term Stock Incentive Plan or other plan shall become immediately
exercisable or otherwise vested.
3
4. LIMITATION ON BENEFITS. It is the intention of the Executive and of the
Company that no payments by the Company 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 Company
by reason of the operation of Section 280G of the Internal Revenue Code of 1986,
as amended (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 Company, such payments shall be
reduced to the maximum amount which can be deducted by the Company. 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 Company 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
Company 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 ten (10) days after the Company has sent the Executive
written notice of the need for such reduction, the Company may determine the
method of such reduction in its sole discretion. As promptly as practicable
following such determination and election hereunder, the Company shall pay to or
distribute to the Executive such amounts as are then due to the Executive under
this Agreement.
5. TERM. This Agreement shall take effect on the date first set forth above
and shall terminate upon the earlier of (i) the termination by the Company of
the employment of the Executive because of one of the enumerated reasons set
forth in Section 2(a) hereof or (ii) the resignation of the Executive after a
Change in Control for any reason other than the occurrence of a Terminating
Event.
6. WITHHOLDING. All payments made by the Company under this Agreement shall
be net of any tax or other amounts required to be withheld by the Company under
applicable law.
7. NO MITIGATION. The Company agrees that, if the Executive's employment by
the Company is terminated during the term of this Agreement, the Executive is
not required to seek other employment or to attempt in any way to reduce any
amounts payable to the Executive by the Company pursuant to Section 3(a) and (b)
hereof. Further, the amount of any payment provided for in this Agreement shall
not be reduced by any compensation earned by the Executive as the result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
8. ASSIGNMENT. Neither the 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 shall be null and void and of no effect.
This Agreement shall inure to the benefit of and be binding upon the Company and
the Executive, their respective successors, executors, administrators, heirs and
permitted assigns, including, in the case of the Company, any other corporate
entity which the Company may be merged or otherwise combined or which may
acquire the Company or its assets in whole or substantial part. In the event of
the Executive's death after a Terminating
4
Event but prior to the completion by the Company of all payments due him under
Section 3(a) and (b) of this Agreement, the Company shall continue such payments
to the Executive's beneficiary designated in writing to the Company prior to his
death (or to his estate, if the Executive fails to make such designation).
9. 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.
10. 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.
11. 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
Company, or to the Company at its main office, attention of the Board of
Directors.
12. EFFECT ON OTHER PLANS. An election by the Executive to resign after a
Change in Control under the provisions of this Agreement shall not be deemed a
voluntary termination of employment by the Executive for the purpose of
interpreting the provisions of any of the Company's benefit plans, programs or
policies. Nothing in this Agreement shall be construed to limit the rights of
the Executive under the Company's benefit plans, programs or policies except as
otherwise provided in Section 4 hereof, and except that the Executive shall have
no rights to any severance benefits under any severance pay plan.
13. 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 Company.
14. 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.
15. OBLIGATIONS OF SUCCESSORS. In addition to any obligations imposed by
law upon any successor to the Company, the Company will use its best efforts to
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform if no such succession had taken place.
16. CONFIDENTIAL INFORMATION. The Executive shall never use, publish or
disclose in a manner adverse to the Company's interests, any proprietary or
confidential information relating to (a) the business, operations or properties
of the Company or any subsidiary or other affiliate of
5
the Company, or (b) any materials, processes, business practices, technology,
know-how, research, programs, customer lists, customer requirements or other
information used in the manufacture, sale or marketing of any of the respective
products or services of the Company or any subsidiary or other affiliate of the
Company; provided, however, that no breach or alleged breach of this Section 16
shall entitle the Company to fail to comply fully and in a timely manner with
any other provision hereof. Nothing in this Agreement shall preclude the Company
from seeking money damages, or equitable relief by injunction or otherwise
without the necessity of proving actual damage to the Company, for any breach by
the Executive hereunder.
17. CONTRACT OF EMPLOYMENT. Nothing in this Agreement shall be construed as
creating an express or implied contract of employment and, except as otherwise
agreed in writing between the Executive and the Company, the Executive shall not
have any right to be retained in the employ of the Company.
[END OF TEXT]
6
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company by its duly authorized officer, and by the Executive,
as of the date first above written.
BOSTON PRIVATE BANCORP, INC.
By: /s/ XXXXXXX X. XXXXX
--------------------------------
Name:
Title:
/s/ XXXXXX X. XXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxx
7
