THIS AGREEMENT entered into this 21st day of September, 1998 and amended on
February 13, 2003, by and between Mayflower Co-operative Bank (the “Bank”) and Xxxxx Xxxxxxxx (the “Employee”).
WHEREAS, the Employee has heretofore been employed by the Bank as Vice President and Treasurer and has considerable experience in the business of the Bank; and
WHEREAS, the parties desire by this writing to set forth the continuing employment relationship of the Bank and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is employed as the Vice President and
Treasurer of the Bank. The Employee shall render such administrative and management services for the Bank as are currently rendered and 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 of the Bank (“Board”) 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 term of this
Agreement a salary at the rate of $77,000 per annum, payable in cash not less frequently than monthly. The Board shall review, not less often than annually, the rate of the Employee’s salary, and in its sole discretion may decide to increase
3. Discretionary Bonuses. The Employee shall participate in an equitable manner with all other senior management employees of the Bank
in discretionary bonuses that the Board may award from time to time to the Bank’s senior management employees. No other compensation provided for in this Agreement shall be deemed a substitute for the Employee’s right to participate in
such discretionary bonuses.
4. (a) Participation in Retirement, Medical and Other Plans. The Employee shall participate in any plan that the Bank
maintains for the benefit of its employees if the plan relates to (i) pension, profit-sharing, or other retirement benefits, (ii) medical insurance or the reimbursement of medical or dependent care expenses, or (iii) other group
benefits, including disability and life insurance plans.
(b) Employee Benefits; Expenses. The Employee shall participate in any
fringe benefits which are or may become available to the Bank’s senior management employees, including for example: any stock option or incentive compensation plans, club memberships, and any other benefits which are commensurate with the
responsibilities and functions to be performed by the Employee under this Agreement. The Employee shall be reimbursed for all reasonable out-of-pocket business expenses which she shall incur in connection with her services under this Agreement upon
substantiation of such expenses in accordance with the policies of the Bank.
5. Term. The Bank hereby employs the Employee, and the Employee hereby accepts such employment under this
Agreement, for the period commencing on September 21, 1998 and ending twenty-four (24) months thereafter on September 21, 2000 (or such earlier date as is determined in accordance with Section 9); provided that notwithstanding
any determination by the Bank not to extend the term of this Agreement, said term shall not expire prior to the expiration of twenty-four (24) months after a Change in Control (as defined in Section 11) shall have occurred. Additionally,
on each annual anniversary date from the Effective Date, the Employee’s term of employment shall be extended for an additional one-year period beyond the then effective expiration date provided the Board determines in a duly adopted resolution
that the performance of the Employee has met the Board’s requirements and standards, and that this Agreement shall be extended.
(a) During the period of her employment hereunder and except for illnesses, reasonable vacation periods, and
reasonable leaves of absence, the Employee shall devote all her full business time, attention, skill, and efforts to the faithful performance of her duties hereunder; provided, however, from time to time, Employee may serve on the boards of
directors of, and hold any other offices or positions in, companies or organizations, which will not present any conflict of interest with the Bank or any of its subsidiaries or affiliates, or unfavorably affect the performance of Employee’s
duties pursuant to this Agreement, or will not violate any applicable statute or regulation. “Full business time” is hereby defined as that amount of time usually devoted to like companies by similarly situated executive officers. During
the term of her employment under this Agreement, the Employee shall not engage in any business or activity contrary to the business affairs or interests of the Bank, or be gainfully employed in any other position or job other than as provided above.
(b) Nothing contained in this Paragraph 6 shall be deemed to prevent or limit the Employee’s right 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 her duties under this Agreement in accordance with such reasonable standards as the Board may establish from time to time. The Bank will provide Employee with the working facilities and staff customary for similar executives
and necessary for her to perform her duties.
8. Vacation and Sick Leave. At such reasonable times as the Board shall in its discretion permit, the
Employee shall be entitled, without loss of pay, to absent herself voluntarily from the performance of her 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 that the Board periodically establishes for senior management
employees of the Bank.
(b) The Employee shall not receive any additional compensation from the Bank on account of her failure to take a
vacation or sick leave, and the Employee shall not accumulate unused vacation or sick leave from one fiscal year to the next, except in either case to the extent authorized by the Board.
(c) In addition to the aforesaid paid vacations, the Employee shall be entitled without loss of pay, to
absent herself voluntarily from the performance of her employment with the Bank for such additional periods of time and for such valid and legitimate reasons as the Board may in its discretion determine. Further, the Board may 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 such Board in its discretion may determine.
(d) In addition, the Employee shall be entitled to an annual sick leave benefit as established by the Board.
Termination and Termination Pay. Subject to Section 11 hereof, the Employee’s employment hereunder may be terminated under the following circumstances:
(a) Death. The Employee’s employment under this Agreement shall terminate upon her death 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 her death occurred.
(b) Disability. The Bank may
terminate the Employee’s employment after having established the Employee’s Disability. For purposes of this Agreement, “Disability” means a physical or mental infirmity which impairs the Employee’s ability to substantially
perform her duties under this Agreement and which results in the Employee becoming eligible for long-term disability benefits under the Bank’s long-term disability plan (or, if the Bank has no such plan in effect, which impairs the
Employee’s ability to substantially perform her duties under this Agreement for a period of one hundred eighty (180) consecutive days). The Employee shall be entitled to the compensation and benefits provided for under this Agreement for
(i) any period during the term of this Agreement and prior to the establishment of the Employee’s Disability during which the Employee is unable to work due to the physical or mental infirmity, or (ii) any period of Disability which
is prior to the Executive’s termination of employment pursuant to this Section 9(b).
(c) Just Cause. The Board may, by
written notice to the Employee, immediately terminate her employment at any time, for Just Cause. The Employee shall have no right to receive compensation or other benefits for any period after termination for Just Cause. Termination for “Just
Cause” shall mean termination because of, in the good faith determination of the Board, the Employee’s personal dishonesty, incompetence, willful misconduct, 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. No act, or failure to act, on the
Employee’s part shall be considered “willful” unless he has acted, or failed to act, with an absence of good faith and without a reasonable belief that her action or failure to act was in the best interest of the Bank. Notwithstanding
the foregoing, (i) the Employee shall not be deemed to have been terminated for Just Cause unless there shall have been delivered to the Employee a copy of a resolution duly adopted by the affirmative vote of not less than a majority
of the entire membership of the Board at a meeting of the Board called and held for that purpose (after reasonable notice to the Employee and an opportunity
for the Employee to be heard before the Board), finding that in the good faith opinion of the Board the Employee was guilty of conduct set forth above in the third sentence of this Subsection (c) and specifying the particulars thereof in
(d) Without Just Cause. Subject to Section 11 hereof, the Board may, by written notice to the Employee, immediately
terminate her employment at any time for a reason other than Just Cause, in which event the Employee shall be entitled to receive the following compensation and benefits: (i) the salary provided pursuant to Section 2 hereof, up to the date
of termination of the term (including any renewal term) of this Agreement (the “Expiration Date”), plus said salary for an additional 12-month period, but in no event in excess of 24 months salary, and (ii) the cost to the Employee of
obtaining all health, life, disability and other benefits which the Employee would have been eligible to participate in through the Expiration Date based upon the benefit levels substantially equal to those that the Bank provided for the Employee at
the date of termination of employment. Said sum shall be paid, at the option of the Employee, either (I) in periodic payments over the remaining term of this Agreement, as if the Employee’s employment had not been terminated, or (II) in
one lump sum within ten (10) days of such termination.
(e) Termination or Suspension Under Federal Law. (1) If the
Employee is removed and/or permanently prohibited from participating in the conduct of the Bank’s affairs by an order issued under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act (“FDIA”) (12 U.S.C. 1818(e)(4) and
(g)(1)), all obligations of the Bank under this Agreement shall terminate, as of the effective date of the order, but vested rights of the parties shall not be affected.
(2) If the Bank is in default (as defined in Section 3(x)(1) of FDIA), all obligations under this Agreement shall terminate as of the date of default; however, this Paragraph shall not affect the vested rights of
(3) All obligations under this Agreement shall terminate, except to the extent that continuation of this Agreement is
necessary for the continued operation of the Bank: (i) by the Commissioner of Banks of the Commonwealth of Massachusetts (the “Commissioner”) or her or her designee, at the time that the Federal Deposit Insurance Corporation
(“FDIC”) enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of FDIA; or (ii) by the Commissioner, or her or her designee, at the time that the Commissioner,
or her or her designee approves a supervisory merger to resolve problems related to operation of the Bank or when the Bank is determined by the Commissioner to be in an unsafe or unsound condition. Such action shall not affect any vested rights of
(4) If a notice served under Section 8(e)(3) or (g)(1) of the FDIA (12 U.S.C. 1818(e)(3) or (g)(1)) suspends and/or
temporarily prohibits the Employee from participating in the conduct of the Bank’s affairs, the Bank’s obligations under this Agreement shall be suspended as of the date of such service, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Bank shall (i) pay the Employee all or part of the compensation withheld while its contract obligations were suspended, and (ii) reinstate (in whole or in part) any of its obligations which were
(f) Voluntary Termination by Employee. Subject to Section 11 hereof, the Employee may
voluntarily terminate employment with the Bank during the term of this Agreement, upon at least 60 days’ prior written notice to the Board of Directors, in which case the Employee shall receive only her compensation, vested rights and employee
benefits up to the date of her termination.
10. No Mitigation. The Employee shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise and no such payment shall be offset or reduced by the amount of any compensation or benefits provided to the Employee in any subsequent employment.
11. Change in Control.
(a) Notwithstanding any
provision herein to the contrary, if the Employee’s employment under this Agreement is terminated by the Bank, without the Employee’s prior written consent and for a reason other than Just Cause, in connection with or within twelve
(12) months after any change in control of the Bank, the Employee shall be paid an amount equal to two times (2x) the “Base Compensation” amount specified in Section 2 of this Agreement, as may have been adjusted by the
Board of Directors in its annual review of this Agreement, or otherwise. Said sum shall be paid in one lump sum within ten (10) days of such termination. Notwithstanding anything contained in this Section 11 herein to the contrary, in no
event shall payments and benefits made pursuant to this Section 11 be made which would result in such payments being classified as an “excess parachute payment” as such term is defined under Section 280G of the Internal Revenue
Code of 1986, as amended (“Code”). In the event that such payments and benefits, if made, would be considered as an “excess parachute payment”, such payments shall be reduced by such dollar amount as is required so that the total
value of such payments and benefits when made shall not be considered as an “excess parachute payment.”
The term “change in
control” shall mean (1) the ownership, holding or power to vote more than 25% of the Bank’s voting stock, (2) the control of the election of a majority of the Bank’s directors, (3) 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), or (4) during any period of two consecutive
years, individuals (the “Continuing Directors”) who at the beginning of such period constitute the Board of Directors of the Bank (the “Incumbent Board”) cease for any reason to constitute at least two-thirds thereof, provided
that any individual whose election or nomination for election as a member of the Incumbent Board was approved by a vote of at least two-thirds of the Continuing Directors then in office shall be considered a Continuing Director. 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
(b) Notwithstanding any other provision of this Agreement to the contrary, the Employee may voluntarily terminate her employment
under this Agreement within twelve (12) months following a change in control of the Bank, and the Employee shall thereupon be entitled
to receive the payment described in Section 11(a) of this Agreement, upon the occurrence of any of the following events, or within ninety (90) days
thereafter, which have not been consented to in advance by the Employee in writing: (i) the requirement that the Employee move her personal residence, or perform her principal executive functions, more than thirty-five (35) miles from
Middleboro, Massachusetts; (ii) a material reduction in the Employee’s base compensation as in effect on the date of the change in control or as the same may be increased from time to time; (iii) the failure by the Bank to continue to
provide the Employee with compensation and benefits provided for under this Agreement, as the same may be increased from time to time, or with benefits substantially similar to those provided to her under any of the employee benefit plans in which
the Employee now or hereafter becomes a participant, or the taking of any action by the Bank which would directly or indirectly reduce any of such benefits or deprive the Employee of any material fringe benefit enjoyed by her at the time of the
change in control; (iv) the assignment to the Employee of duties and responsibilities materially different from those normally associated with her position as referenced at Section 1; (v) a failure to elect or reelect the Employee to
the Board of Directors of the Bank, if the Employee is serving on the Board on the date of the change in control; or (vi) a material diminution or reduction in the Employee’s responsibilities or authority (including reporting
responsibilities) in connection with her employment with the Bank.
(c) Any payments made to the Employee pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and any regulations promulgated thereunder.
(d) Notwithstanding any other provision of this Agreement to the contrary, the Employee may voluntarily terminate her employment for any reason within the 30-day period beginning on the date of a change in control as defined in §11(a)
of this Agreement, and the Employee shall thereupon be entitled to receive the payment described in Section 11(a) of this Agreement.
(e) In the event that any dispute arises between the Employee and the Bank as to the terms or interpretation of this Agreement, including this Section 11, whether instituted by formal legal proceedings or otherwise, including any
action that the Employee takes to enforce the terms of this Section 11 or to defend against any action taken by the Bank, the Employee shall be reimbursed for all costs and expenses, including reasonable attorneys’ fees, arising from such
dispute, proceedings or actions, provided that the Employee shall obtain a final judgement by a court of competent jurisdiction in favor of the Employee. Such reimbursement shall be paid within ten (10) days of Employee’s furnishing to the
Bank written evidence, which may be in the form, among other things, of a cancelled check or receipt, of any costs or expenses incurred by the Employee.
12. Successors and Assigns.
(a) This Agreement 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 or stock 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 her rights or duties hereunder without first obtaining the written consent of the Bank.
No amendments or additions to this Agreement shall be binding unless made in writing and signed by all of the parties, except as herein otherwise specifically provided.
14. Applicable Law. Except to the extent preempted by Federal law, the laws of the Commonwealth of Massachusetts shall govern this Agreement in all respects, whether as to its validity, construction, capacity,
performance or otherwise.
15. Severability. The provisions of this Agreement shall be deemed 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 modifications thereof as agreed 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.
||Mayflower Co-operative Bank|
|/s/ Xxxx X. Xxxxxxx
||/s/ Xxxxxx X. Xxxxx|
||Xxxxxx X. Xxxxx|
||President and Chief Executive Officer|
|/s/ Xxxx X. Xxxxxx
||/s/ Xxxxx Xxxxxxxx|
||Vice President and Treasurer|