Exhibit 10.12
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into as of this 1st day of January, 2005 by and
between Ipswich Capital Investment Corp., a Massachusetts corporation, having
its principal place of business in Ipswich, Massachusetts (the "Company"), and
Xxxxx X. Xxxxxxx, Xx. of 000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxxxxxxx 00000
(the "Employee").
W I T N E S S E T H T H A T :
WHEREAS the Company desires to employ the Employee as the President of the
Company, on the terms and conditions contained herein; and
WHEREAS the Employee desires to be so employed.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Term. The Company hereby employs the Employee and the Employee hereby
accepts employment by the Company for a period of one (1) year beginning January
1, 2005 (the "Effective Date"), subject to the provisions of Section 8 hereof.
On December 31, 2005 and on each anniversary thereof (the "Termination Date"),
the term of Employee's employment shall be automatically extended for one (1)
additional year unless Company or Employee shall have given the other party
written notice of their intention not to further extend the term of this
Agreement not less than one (1) month prior to the then Termination Date, in
which event this Agreement shall not be further extended and shall terminate
automatically (without any further action) on the then Termination Date.
2. Position.
(a) During the term of this Agreement, the Company shall employ the
Employee as its President. In such capacity, the Employee shall be assigned such
duties and tasks as are appropriate for a person in the position of President,
and he shall be subject to the supervision of the Board of Directors of the
Company. The duties of the Employee shall include research, analysis, and
assistance in the acquisition of investment management firms which will be
located in the Boston or north shore area. In addition, Employee will have
ongoing responsibilities for directing and managing the growth of the Company.
These duties include the pursuit of acquisitions to improve both profitability
and growth, as well as sales and marketing activities. Secondary
responsibilities will be to look for areas of synergy and improved profitability
for The First National Bank of Ipswich ("Bank"), its existing trust department
and its affiliates. This may entail discussions with other local trust
operations, as well as other acquisitions.
(b) The Company shall employ the Employee on a full-time basis, and
(subject to the last sentence of this paragraph and Employee's participation in
industry associations, and other corporate or charitable boards and continuing
education activities which do not materially affect the performance of
Employee's duties hereunder) the Employee shall devote his full time and
professional efforts to the performance of his duties. The Company encourages
participation by the Employee on community boards and committees and in
activities generally considered to be in the public interest, but the Company
shall have the right to approve the Employee's participation on such boards and
committees as may conflict with the Company's own business or demands upon the
Employee's time (which approval shall not be unreasonably withheld).
3. Compensation and Benefits.
(a) Base Compensation. At all times while Employee is employed by the
Company under this Agreement, the Company shall pay to the Employee, in equal
monthly installments, an annual salary in the amount of One Hundred and Ninety
Thousand ($190,000) Dollars. Thereafter, the minimum base annual salary of the
Employee may be adjusted upward from time to time in the sole discretion of the
Company, in which case such increased amount shall thereafter constitute the
Employee's annual salary.
(b) Fringe Benefits. At all times while Employee is employed by the
Company under this Agreement, the Company shall provide or cause to be provided
to the Employee the fringe and other benefits as set forth on Exhibit A to this
Agreement. The Employee shall maintain adequate records of all reimbursable
expenses necessary to satisfy reporting requirements of the Code (herein
defined) and applicable Treasury regulations.
(c) Bonus Compensation. If at the end of any calendar year the Employee is
employed by the Company under this Agreement and the Net Earnings (defined
below) of the Company for that year exceed the Capital Return Amount (defined
below), the Employee shall be entitled to receive a bonus (the "Bonus") as
calculated below, unless prior to the time of payment of such Bonus the Employee
has been terminated for "Cause" as hereinafter defined:
(i) The "Net Earnings" of the Company means the earnings of the
Company after the payment of all taxes attributable to the Company, all
expenses of the Company, and all overhead expenses of First Ipswich
Bancorp ("Bancorp") or any of its affiliates related to the Company as
mutually reviewed, all as computed for a calendar year.
(ii) "Capital Return Amount" means an amount equal to the product of
(A) the weighted average of the Investment for a calendar year, and (B)
.10. "Investment" shall mean the aggregate of all investments (including
loans) by Bancorp and its affiliates (including investments made by the
Bank) in the Company.
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(iii) The Bonus for each calendar year (commencing with the calendar
year ending December 31, 2005) shall be calculated using the following
formula where "X" represents the Bonus:
X = Net Earnings (before the Bonus) - Capital Return Amount - X) times the
Multiplier (hereinafter defined in Section 3 (c)(iv))
For example, if as of December 31, 2005, the Net Earnings (before the
Bonus) were $600,000 and the Capital Return Amount was $210,000, the Bonus
for 2005 would be equal to $50,870. Similarly, if for example for the year
ending December 31, 2006, the Net Earnings (before the 2006 Bonus) were
$800,000 and the Capital Return Amount was $300,000, the Bonus for 2006
would be equal to $65,217. Each Bonus shall be paid after the computation
of Net Earnings and Capital Return Amount has been made by Bancorp
following the end of each calendar year, but no later than 90 days after
the end of each such calendar year, and shall be paid net of state and
federal tax related deductions. The Employee shall be entitled to a
pro-rated portion of the Bonus with respect to a calendar year if, and
only if the Employee terminates his employment (or is terminated without
Cause by the Company) during such calendar year. The prorated amount shall
be equal the product of (a) the Bonus (if any) for such calendar year, and
(ii) the percent calculated by dividing the number of days elapsed in the
calendar year as of the date of termination by 365. All calculations shall
be made in accordance with generally accepted accounting principles
applied on a consistent basis.
(iv) As of the date of this Agreement, Bank owns 100% of the common
stock of the Company (no preferred stock has been issued) and the
Multiplier as used in this Agreement shall be .15. In the event Bank's
ownership interest in the common or preferred stock of the Company is
hereafter diluted in any way (whether by means of sale, merger,
consolidation, reorganization or otherwise), the Multiplier shall be
adjusted in accordance with the following formula, where "X" is equal to
the new Multiplier, and "Y" is equal to Bank's new percentage ownership
interest in the Company:
X = 0.15Y
---------
For example, if Bank reduces its ownership interest to 80%, the new
Multiplier would be 0.12.
(v) For any calendar year when the aggregate Net Earnings do not
exceed the Capital Return Amount, the Board of Directors may award an
annual bonus to the Employee in its sole discretion. Payment of the Bonus
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under this subsection shall be paid in the same manner as described in
Section 3(c)(iii) above.
(d) Additional Compensation. If, and only if, the Employee's employment
terminates for any reason other than Cause and the Company is deemed to have
exceeded the Capital Hurdle (as described below) by the end of the calendar year
preceding the year in which the Employee's employment terminates, the Employee
shall be considered to be entitled to the "Additional Compensation Amount"
(hereinafter defined) under the terms and conditions described below.
(i) For purposes of this Section 3(d), the Company shall be deemed to
have exceeded the "Capital Hurdle" if as of December 31st of the
calendar year immediately preceding the year in which the Employee's
employment terminates, either (A) the "Investment Balance" (defined
below) is a negative amount, calculated in the manner described in
(iii) below or (B) the Value Amount exceeds the Investment Balance.
(ii) The Investment Balance on January 1, 2005 shall be equal to the
Investment at that time, which is $2,100,000. As used herein, the
Investment Balance on December 31st in each year shall be equal to
the "Investment Balance" on January 1st of such year (plus (or
minus) any increase (or decrease) in the Investment during such
year) minus the Net Earning for such year. The Investment Balance on
January 1st in each year after 2005 shall be equal to the Investment
Balance on the immediately preceding December 31st plus 10% of the
Average Investment Balance for the calendar year ending on such
December 31st, calculated in the manner described below. The
"Average Investment Balance" for a calendar year shall be equal to
one half of the sum of the Investment Balance on January 1st of such
year and the Investment Balance on December 31st of such year.
(iii) If for example, by way of illustration only, Employee retires in
2008, the Investment is $2,100,000 prior to March 31, 2007 and
$3,100,000 at all times thereafter, the Net Earnings of the Company
are $600,000 in 2005, $1,000,000 in 2006 and $1,200,000 in 2007, the
Company will not be deemed to have exceeded the Capital Hurdle on
December 31, 2007, as calculated below:
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2005 Step One: $2,100,000 Investment Balance on 1/1/05
- 600,000 Net Earnings for 2005
----------
$1,500,000 Investment Balance on 12/31/05
Step Two: $2,100,000 Investment Balance on 1/1/05
+ 1,500,000 Investment Balance on 12/31/05
----------
$3,600,000
/ 2
= $1,800,000 Average Investment Balance for 2005
x 10%
----------
$ 180,000 10% Return on Average
Investment Balance for 2005
2006 Step One: $1,500,000 Investment Balance on 12/31/05
+ 180,000 10% Return on Average
----------
Investment Balance for 2005
$1,680,000 Investment Balance on 1/1/06
- 1,000,000 Net Earnings for 2006
----------
$ 680,000 Investment Balance on 12/31/06
Step Two: $1,680,000 Investment Balance on 1/1/06
+ 680,000 Investment Balance on 12/31/06
----------
$2,360,000
/ 2
= $1,180,000 Average Investment Balance for 2006
x 10%
----------
$ 118,000 10% Return on average
Investment Balance for 2006
2007 Step One: $ 680,000 Investment Balance on 12/31/06
+ 118,000 10% Return on Average
---------- Investment Balance for 2006
798,000 Investment Balance on 1/1/07
+ 1,000,000 Increase in Investment for 2007
- 1,200,000 Net Earnings for 2007
---------
$ 598,000 Investment Balance on 12/31/07
(iv) The "Additional Compensation Amount" shall, except as provided
in Section 3(d)(vii) below, be equal to the following amount: either (A)
the product of the Value Amount and the Multiplier (all as of the date of
the termination of Employee's employment), if the Investment Balance (as
of the December 31st immediately preceding the termination of the
Employee's employment) is a negative amount or (B)the product of the
amount by which the Value Amount exceeds the Investment Balance and the
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Multiplier (all as of the date of the termination of the Employee's
employment), if the Investment Balance is a positive amount and the Value
Amount exceeds the Investment Balance (in each case as of the December
31st immediately preceding the termination of the Employee's employment).
If, for example, by way of illustration and using the example set forth in
Section 3(d)(iii) above, the Value Amount and the Multiplier were
$3,000,000 and 0.15 respectively, both on December 31, 2007 and on the
date of Employee's termination of employment in 2008, then the Additional
Compensation Amount would be equal to the product of $2,402,000
($3,000,000 - $598,000) and .15 or $360,300.
(v) The "Value Amount" means the fair market value of the Company.
The fair market value of the Company shall be determined by an appraisal
as of the last date of each of the calendar quarters immediately preceding
and following the date of Employee's termination of employment unless his
employment terminates on the last date of a calendar quarter. If
Employee's employment terminates on a day other than the last day of a
calendar quarter, the increase (or decrease) in the Value Amount during
the calendar quarter in which the Employee's termination of employment
occurred shall be a prorated amount based upon the number of days elapsed
in such calendar quarter up to the date of termination. The appraiser
shall be qualified and experienced in appraising companies in the same
line of business as the Company and shall be mutually agreed to by the
Bank and the Employee. If the Bank and the Employee are not able to agree
on an appraiser, a third-party designated by the Company and the Employee
shall designate the appraiser. The Company shall pay the reasonable fees
and expenses of the appraiser.
(vi) The Additional Compensation Amount due under Section 3(d) (less
the amount, if any, payable in unregistered shares of the common stock of
Bancorp pursuant to the next sentence) shall be payable in five equal
annual installments commencing on the first day of the sixth month
following the month in which the termination of employment occurs if the
aggregate amount of such payments is equal to or less than $500,000 and in
seven equal annual installments if such payments exceed $500,000. The
Company may, at its option, pay the Employee up to one-half of the
Additional Compensation amount in unregistered shares of the common stock
of Bancorp, on the date of the payment of each installment of the
Additional Compensation Amount. However, in the event of a Change of
Control all payments under Section 3(d) shall be made within sixty (60)
days of the Change in Control.
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(vii) If there shall occur a Change in Control (defined below) after
the termination of the employment of the Employee from the Company and
prior to the second anniversary of such termination, the Employee was not
terminated for Cause and the Company was deemed to have exceeded the
Capital Hurdle at the end of the year immediately preceding the year in
which his employment terminated, the Employee shall be entitled to be paid
an Additional Compensation Amount equal to (A) the Adjusted Value Amount
of the Company as of the date of the Change in Control multiplied by (B)
the Multiplier at the date of the Change in Control (provided that, if the
Change in Control occurs more than 365 days after the termination of
Employee's employment, one-half the Multiplier shall be used) minus any
amounts previously paid under Section 3(d) hereof. As used in this Section
3(d)(vii), the fair market value of the Company shall be determined, as of
the date of the Change in Control, conclusively by Bancorp's accountants,
based, if applicable, upon the price paid by the acquiror in connection
with the Change in Control.
(viii) A "Change in Control" shall occur if (A) the Bank ceases to
own at least 51% of the common stock of the Company, (B) any person shall
own a greater percentage of the common stock of Bancorp than the Xxxxxxx
Family or (C) the Xxxxxxx Family shall cease to own, in the aggregate, at
least 34% of the common stock of Bancorp or, if applicable, at least 34%
of the common stock of the surviving entity in any merger, consolidation
or reorganization to which Bancorp is a party, the entity to which all or
substantially all of the assets of the Bank or Bancorp are sold, or the
entity in which assumes all or substantially all of the deposits of the
Bank. The "Xxxxxxx Family" shall mean Xxxx St. Xxxx Xxxxxxx, his spouse,
issue and their spouses, and trusts of which any of the described persons
is a beneficiary, which shall include trusts or custodianship arrangements
under retirement plans, and custodian, nominee, agency or similar
arrangements created by or which benefit any of the described persons.
Notwithstanding the foregoing, if any payment or benefit received or to be
received by Employee in connection with a Change in Control of the Company or
the termination of your employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company or the
Bank, any person whose actions result in a Change in Control or any person
affiliated with the Company, the Bank or such person) (collectively, "Total
Payments"), would not be deductible (in whole or part) under Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") by the Company, the Bank,
an affiliate or other person making such payment or providing such benefit, the
payments made under this Agreement are reduced until no portion of the Total
Payments is not deductible, or the payments under this Agreement are reduced to
zero. For purposes of this limitation (1) no portion of the Total Payments, the
receipt or enjoyment of which Employee shall have effectively waived in writing
prior to the date of payment of the payments made under this Agreement are taken
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into account, (2) no portion of the Total Payments shall be taken into account
which in the opinion of the Company's independent auditors does not constitute a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code, (3)
the payments made under this Agreement are reduced only to the extent necessary
so that the Total Payments (other than those referred to in clauses (1) or (2))
in their entirety constitute reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4) of the Code or are otherwise
not subject to disallowance as deductions, in the opinion of the Company's
independent auditors, and (4) the value of any non-cash benefit or any deferred
payment or benefit included in the Total Payments shall be determined by the
Company's independent auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code.
4. Non-competition. At all times during the term of this Agreement in
which the Employee is employed by the Company, and for a period of one (1) year
thereafter, the Employee shall not, directly or indirectly, as an employee of
any person or entity (whether or not engaged in business for profit), individual
proprietor, partner, stockholder, director, officer, joint venturer, investor,
lender, consultant, or in any other capacity whatever (otherwise than as holder
of less than ten (10) percent of any securities publicly traded in the market)
compete with the Company within any city or town in which the Company operates
an office at the time of the termination of Employee's employment, within any
contiguous city or town, or within fifty (50) miles of any such office. The
obligations of Employee hereunder are independent of the performance of any
obligations of the Company hereunder.
5. No Solicitation of Customers. At all times during the term of this
Agreement in which the Employee is employed by the Company, and for a period of
eighteen (18) months thereafter, the Employee shall not, directly or indirectly,
solicit, or attempt to solicit, induce or influence to change its business
relationship with any customer of the Company at the time of the termination of
Employee's employment hereunder. The obligations of Employee hereunder are
independent of the performance of any obligations of the Company hereunder.
6. No Solicitation of Employees. At all times during the term of this
Agreement in which the Employee is employed by the Company, and for a period of
two (2) years thereafter, the Employee shall not, directly or indirectly,
employ, attempt to employ, recruit or otherwise solicit, induce or influence to
leave his or her employment any employee of the Company. The obligations of
Employee hereunder are independent of the performance of any obligations of the
Company hereunder.
7. No Disclosure of Information. The Employee shall not at any time
divulge, use, furnish, disclose or make accessible to anyone other than the
Company any knowledge of information with respect to confidential or secret
data, procedures or techniques of Bancorp, the Company, or any of their
affiliates. However, nothing in this Section 7 shall prevent the disclosure by
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the Employee of any such information which at any time comes into the public
domain, other than as a result of the violation of the terms of this Section 7
by the Employee, or which is otherwise lawfully acquired by the Employee.
8. Termination of Employment. The employment of the Employee shall
terminate on the earliest to occur of the following dates:
(a) The expiration of the term hereof;
(b) At the election of the Company, on the thirtieth (30) day following
the delivery by the Company to Employee of a written notice terminating the
employment of the Employee without Cause (as herein defined);
(c) The Employee's resignation from the Company or the death or disability
of the Employee (the Employee being deemed to be disabled if he has been unable
for one hundred twenty (120) consecutive days to render services required to be
rendered by him during the term hereof);
(d) At the election of the Company, for Cause, as hereinafter defined. For
purposes of this Agreement, the Company shall be deemed to have "Cause" to
terminate the employment of the Employee under this Agreement only if:
(i) The Employee refuses or fails (within thirty (30) days) to
substantially perform or discharge the duties or responsibilities reasonably
assigned by the Board of Directors of the Company (other than any such refusal
or failure resulting from the Employee's incapacity due to physical or mental
illness), provided the assigned responsibilities are not illegal, unethical or
inconsistent with the Employee's responsibilities after a demand for substantial
performance is delivered to Employee by a representative of the Board of
Directors which specifically identifies the manner in which that Employee has
not substantially performed such duties, making reference to this provision of
the Agreement;
(ii) The Employee is grossly negligent in the performance of his
duties;
(iii) The Employee breaches his fiduciary duty to the Company or any
affiliate of the Company, or breaches the terms of this Agreement or any other
agreements with the Company or any affiliates of the Company;
(iv) The Employee is convicted by a court of competent jurisdiction
of a felony or of any criminal offense involving dishonesty or breach of trust;
(v) The Employee commits an act of fraud materially evidencing bad
faith toward the Company;
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(vi) The Employee engages in misconduct which is materially
injurious to the Company. Such misconduct may include sexual harassment,
domestic violence, public intoxication or being under the influence of
controlled substances. Misconduct materially injurious to the Company shall mean
misconduct which materially and adversely affects the Company's business,
reputation, or standing in the community. Such material adverse affect may
result from non-monetary injury as well as from monetary injury, such as from
adverse publicity towards the Company or any of its affiliates.
9. Payments Upon Termination of Employment.
(a) Payments Upon Death or Disability. If at any time while he is
employed hereunder the Employee shall die or become disabled, in addition to all
other benefits which he or his personal representatives may be entitled under
Section 3(b) hereof, the Company shall pay to Employee, his personal
representative or his estate, his base annual salary in effect as of the date of
such termination through the date of termination. The Employee, his personal
representative or his estate, shall also be paid Additional Compensation and a
Bonus as provided in Section 3 hereof.
(b) Payments Upon Termination for Cause. If at any time while he is
employed hereunder the Employee shall be terminated for Cause, in addition to
all other benefits which he or his personal representatives may be entitled
under paragraph 3(b) hereof, the Company shall pay to Employee, his personal
representative or his estate, his base annual salary in effect as of the date of
such termination through the date of termination. Employee shall not be entitled
to the payment of any Bonus or Additional Compensation.
(c) Payments Upon Termination of Employment by the Company other
than for Cause or as a result of Employee's Death or Disability. If at any time
during the term of this Agreement the employment of the Employee is terminated
by the Company (other than for Cause or on account of Employee's death or
disability), then in such case:
(i) The Company shall pay to the Employee, the Employee's
base annual salary in effect as of the date of such
termination through the date of termination. The
Employee shall also be paid Additional Compensation and
a Bonus as provided in Section 3 hereof.
(ii) The Company shall continue to pay to Employee (at the
same times and in the same manner as if Employee were
still employed by the Company), or to his personal
representatives or his estate in case of his death, the
Employee's base annual salary in effect as of the date
of such termination for the period of time specified in
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the chart below based upon the year of employment during
which the termination occurred:
--------------------------------------------------------------------------
Date of Termination Number of Months of
of Employment Base Salary
--------------------------------------------------------------------------
prior to April 1, 2005 six (6) months
--------------------------------------------------------------------------
April 1, 2005 - March 31, 2006 nine (9) months
--------------------------------------------------------------------------
April 1, 2006 and thereafter Twelve (12) months
--------------------------------------------------------------------------
In addition, during that same period, the Company will continue to provide
Employee with health and dental insurance and life insurance on the same basis
as provided for its employees; provided, however, that if Employee is not
permitted to participate in such plans by the insurer, the Company shall pay to
the Employee a monthly amount during such period equal to its cost per employee
to provide such insurance to its employees.
If the employment of Employee is terminated by the Company without
Cause within two years following a Change in Control, the Employee shall be
considered to have been terminated after March 31, 2006. The payments to be made
under this section 9(c)(ii) shall be paid in the same manner as if Employee were
still employed by the Company and shall be less state and federal tax related
deductions. Notwithstanding any other term of this Agreement, the Employee
agrees and acknowledges that the payments provided for in Subsection 9(c)(ii)
hereof shall satisfy in full any and all obligations and liabilities of the
Company to pay severance to the Employee as a result of or in connection with
the termination of the employment relationship between the Company and Employee.
10. Notices. Notices under this Agreement shall be in writing and shall be
mailed by registered or certified mail, effective upon receipt, addressed as
follows:
(a) To the Company: Ipswich Capital Investment Corp.
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx St. Xxxx Xxxxxxx, Director
(b) To the Employee: Xx. Xxxxx X. Xxxxxxx, Xx.
000 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxx, Xxxxxxxxxxxxx 00000
Either party may by notice in writing change the address to which notices to it
or him are to be addressed hereunder.
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11. Arbitration. Any dispute or controversy, arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Boston, Massachusetts, 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.
12. Miscellaneous.
(a) Cooperation. In the event of any threatened or actual claim,
action, suit, proceeding or investigation, whether civil, administrative or
criminal, including, without limitation, any such claim, action, suit,
proceeding or investigation in which Employee is, or is threatened to be, made a
party, based in whole or in part on, or arising in whole or in part out of, or
pertaining to, the fact that he is an officer or employee of the Company or any
of its affiliates, the Company and Employee agree to cooperate and use their
reasonable efforts to defend against and respond to such claim, action, suit,
proceedings or investigation. Employee shall, upon learning of any such claim,
action, suit, proceeding or investigation, notify the Company thereof.
(b) Entire Agreement. This Agreement constitutes the entire
Agreement between the parties and may not be changed except by a writing duly
executed and delivered by the Company and the Employee in the same manner as
this Agreement.
(c) Governing Law. This Agreement is governed by and shall be
construed in accordance with the laws of the Commonwealth of Massachusetts.
Employee agrees that this Agreement supersedes in all respects any prior
agreement between the Company and the Employee.
(d) Binding Effect; Non-Assignability. This Agreement shall be
binding upon the Company and inure to the benefit of the Company and its
successors and assigns. Neither this Agreement nor any rights arising hereunder
may be assigned or pledged by the Employee during his lifetime. This Agreement
shall inure to the benefit of and be enforceable by the Employee's personal or
legal representatives, executors, administrators, heirs, distributees, devisees
and legatees.
(e) 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 provisions 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.
13. If any part of this Agreement results in additional federal income
taxes or penalties to Employee as a result of the provisions of Section 409A of
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the Code or any regulations issued thereunder, such part shall be ineffective to
the extent of such prohibition without invalidating the remaining provisions
hereof. If the invalidity of any part of this Agreement for such reason shall
deprive Employee of the economic benefit intended to be conferred by this
Agreement, the parties shall negotiate, in good faith, to develop a structure
that, as nearly as possible, has the same economic effect as does this Agreement
without regard to such invalidity.
IN WITNESS WHEREOF, the parties hereto have executed the within instrument
as a sealed document as of the date first above written.
Attest: IPSWICH CAPITAL
INVESTMENT CORP.
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------------- -----------------------------------
/s/ Xxxxx X. Xxxxxxx, Xx.
-----------------------------------
Xxxxx X. Xxxxxxx, Xx.
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EXHIBIT A
to Employment Agreement
By and Between Ipswich Capital Investment Corp.
and Xxxxx X. Xxxxxxx, Xx.
dated as of January 1, 2005
1. Vacation - The Employee shall be entitled to ___ weeks paid vacation in
each calendar year during the term of the Agreement in accordance with the
Bank's policy. The Employee shall also be entitled to all paid holidays
recognized by the Bank. Unused accrued vacation time (which may be carried
over in accordance with the Bank's policy) is paid on termination.
2. Retirement Plan - The Employee shall be entitled to participate in the
Bank's retirement plan, if any, from time to time in effect.
3. Profit Sharing Plan - The Employee shall be entitled to participate in the
Bank's profit sharing plan and its 401(k) plan, if and to the extent from
time to time in effect.
4. Insurance - The Employee shall be entitled to participate in insurance
programs and benefits maintained by the Bank, from time to time in effect.
5. Administrative Support - Employee shall be provided with office space,
telephone access, and secretarial support at the Bank's main office in
Ipswich, Massachusetts, and at any other office of the Company, as needed
from time to time.
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