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Exhibit 10.21
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made by and between People's Bancshares, Inc., a
Massachusetts corporation (the "COMPANY"), People's Savings Bank of Brockton, a
Massachusetts savings bank (the "BANK"), and Xxxxx X. Xxxx, an individual
residing at 0 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx (the "EXECUTIVE"), as of the
28th day of March, 2001 (the "EFFECTIVE DATE"). Except where otherwise indicated
or inapplicable, all references to the "Company" in this Agreement shall refer
to both the Company and the Bank.
In consideration of the mutual promises, terms and conditions contained
in this Agreement, the parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby agrees to continue the employment of
the Executive, and the Executive agrees to continue in the service of the
Company, subject to the terms and conditions contained herein.
2. DUTIES AND PERFORMANCE.
a. Subject to the general direction of the Board of Directors
of the Company (the "BOARD"), the Executive shall serve as the Executive Vice
President/Finance and Administration and Chief Financial Officer of the Company
and shall perform such duties and assume the responsibilities of such positions
and other appropriate duties and responsibilities as may be assigned by the
Board or its designees.
b. While employed by the Company hereunder, the Executive
shall devote his full business time and best efforts, judgment, skill and
knowledge exclusively to the advancement of the Company's interests and to the
discharge of his duties and responsibilities for the Company. While employed by
the Company hereunder, the Executive shall not engage in any other business
activity, except as approved by the Board or its designee in writing. It is
agreed, however, that the provisions of this Section 2(b) shall not be violated
by the Executive's holding of directorships or related positions in charitable,
educational or not-for-profit organizations which do not involve substantial
time commitments or by passive personal investment activities, provided that
such positions and activities are not in conflict, and do not otherwise
interfere, in any material respect, with the Executive's duties and
responsibilities to the Company.
3. COMPENSATION. As compensation for all services performed for the
Company during the term of this Agreement, the Company shall pay the Executive a
base salary (the "BASE SALARY") at an annual rate not less than the Executive's
base salary on the Effective Date, subject to increase from time to time by the
Company in its discretion.
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4. EMPLOYEE BENEFITS. During the term hereof, the Executive shall be
entitled to participate in any and all employee benefit plans, medical insurance
plans, life insurance plans, disability income plans, retirement plans, bonus
incentive plans, disability income plans, stock option plans and other benefit
plans from time to time in effect for employees of the Company generally,
excluding only plans providing payments and/or other benefits in the event of a
termination of employment. Such participation shall be subject to the terms of
the applicable plan documents, generally applicable Company policies and the
discretion of the Board or any administrative or other committee provided for in
or contemplated by such plan. In addition, during the term hereof, the Executive
shall be entitled to a monthly automobile allowance in an amount available to
other senior officers of the Company.
5. BUSINESS EXPENSES. The Company shall reimburse the Executive for all
reasonable travel and other business expenses incurred by him in the performance
of his duties and responsibilities, subject to such reasonable requirements with
respect to substantiation and documentation as may be specified by the Company.
6. VACATION; SICK LEAVE. The Executive shall be entitled to vacation
and sick leave benefits during the term of this Agreement in accordance with the
customary policies of the Company for employees of comparable position and
responsibilities.
7. TERM. Subject to earlier termination, as provided hereafter, the
Executive's employment hereunder shall be for an initial term of two (2) years,
commencing on the Effective Date; PROVIDED, HOWEVER, that the term shall be
extended automatically from day to day thereafter, such that the remaining term
of this Agreement always shall be two (2) years, unless either party gives
notice to the other party of such party's election not to extend the term of
this Agreement. The term of this Agreement, as from time to time renewed or
extended in accordance with this Section 7, is hereafter referred to as "the
term hereof" or "the term of this Agreement".
8. TERMINATION OF EMPLOYMENT. Notwithstanding the provisions of Section
7 above, the Executive's employment under this Agreement shall terminate under
the following circumstances and, in that event, the Company shall have only such
obligations to the Executive as are specified below under the applicable
termination provision:
a. UPON DEATH. In the event of the Executive's death during
the term hereof, the Executive's employment hereunder shall immediately and
automatically terminate. In such event, the Company shall pay to the Executive's
designated beneficiary or, if no beneficiary has been designated by the
Executive, to the Executive's estate, the Executive's base salary then in effect
for a period of three (3) months following the date of death.
b. AS A RESULT OF DISABILITY. In the event that the Executive
becomes disabled during the term hereof and, as a result, is unable to perform
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substantially all of his duties for the Company for more than one hundred and
twenty (120) days during any period of three hundred and sixty-five (365) days,
the Company may terminate the Executive's employment without further obligation
upon notice to the Executive. In the event of such disability, the Executive
will continue to receive his base salary and benefits under Sections 3 and 4
hereof until the earlier of the date the Executive becomes eligible for
disability income under the Company's long-term disability or workers'
compensation insurance plan or the date his employment terminates.
c. BY THE COMPANY FOR CAUSE. The Company may terminate the
Executive's employment for Cause at any time upon notice to the Executive
setting forth in reasonable detail the nature of such Cause. The following, as
determined by the Board in its reasonable judgment, shall constitute Cause for
termination: (1) the Executive's refusal to perform, or gross negligence in the
performance of, his duties or responsibilities on behalf of the Company, in
either case, which continues for more than thirty (30) days after written notice
has been given to the Executive hereunder; (2) the Executive's fraud,
embezzlement or other material dishonesty with respect to the Company; and (3)
the Executive's gross misconduct, or his conviction of a crime of moral
turpitude. In the event of such termination, the Company shall have no further
obligation to the Executive, other than for base salary earned through the date
of termination.
d. BY THE COMPANY OTHER THAN FOR CAUSE. The Company may
terminate the Executive's employment other than for Cause upon notice to the
Executive under this subsection (d) or under subsection (g) below, whichever is
applicable. In the event of such termination prior to, or more than two years
following, a "Change of Control" and provided that the Executive executes the
release of claims attached hereto and marked "A" (the "EXECUTIVE RELEASE")
within twenty-one (21) days on the date of notice of termination of employment
and does not timely revoke the Executive Release, the Company:
i. shall pay the Executive severance pay in an amount
equal to twelve (12) months' base salary at the rate in effect
on the date of termination and the bonus which the Executive
earned for performance, if any, during the calendar year
immediately preceding the year in which termination occurs,
which the Executive may elect to receive (A) in a single lump
sum, payable within thirty (30) days following the effective
date of the Executive Release or (B) as salary continuation
payable at the Company's regular payroll periods and in
accordance with its regular payroll practices commencing on
the next regular payday immediately following the effective
date of the Executive Release, but retroactive to the date of
termination; and,
ii. at the Executive's election, (A) shall continue
to pay, for the period of twelve (12) months following
termination of the
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Executive's employment or, if earlier, until the date the
Executive is covered under another employer's health plan that
is comparable to that of the Company (the "POST-EMPLOYMENT
HEALTH COVERAGE PERIOD"), that share of the premium cost of
Executive's participation and that of his eligible dependents
in the Company's group health plan as it pays for active
employees of the Company and their eligible dependents
generally OR (B) shall pay the Executive a single lump sum
payment equal to the amount that the Company would have
expended if participation had been elected and continued for a
period of twelve (12) months, which lump sum shall be payable
within thirty (30) days following the effective date of the
Executive Release, and the Executive and his eligible
dependents may exercise any rights they have under COBRA to
continue participation in the group health plan at their cost,
effective as of the date the Executive's employment
terminates. Should the Executive elect option (A) above, the
period of any continued health coverage to which the Executive
and his eligible dependents may be entitled under Sections
601-607 of ERISA and Section 4980B of the Internal Revenue
Code (collectively referred to as "COBRA") as a result of the
Executive's termination of employment will commence at the end
of the above-defined Post Employment Health Coverage Period.
Notwithstanding anything to the contrary contained herein, the
Executive may only elect option (A) directly above if the
Executive elects to receive payment under subparagraph (d)(i),
directly above, in the form of salary continuation.
e. BY THE EXECUTIVE FOR GOOD REASON. The Executive may
terminate employment hereunder for Good Reason upon notice to the Company
setting forth in reasonable detail the nature of such Good Reason. The following
shall constitute Good Reason for termination by the Executive: (i) failure of
the Company to continue the Executive in his executive position; (ii) a change
adverse to the Executive in the Executive's primary reporting relationship;
(iii) material diminution in the nature or scope of the Executive's
responsibilities, duties or authority, (iv) material failure of the Company to
provide the Executive base salary and benefits in accordance with the terms of
Sections 3 and 4 hereof; or (v) a permanent transfer of the Executive to a work
site more than twenty-five miles distant from his work site on the Effective
Date. In the event of termination in accordance with this Section 8(e), the
Company shall provide the Executive base salary and health insurance benefits in
accordance with Section 8(d) hereof, provided that the Executive executes the
Executive Release within twenty-one (21) days of his notice of termination of
employment and provided further that the Executive does not timely revoke the
Executive Release.
f. BY THE EXECUTIVE OTHER THAN FOR GOOD REASON. The Executive
may resign employment other than for Good Reason at any time upon one month's
notice to the Company. In the event of such termination, the Company shall have
no
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further obligation to the Executive, other than for base salary earned through
the date of termination.
g. UPON A CHANGE OF CONTROL.
i. If a "Change of Control" (as defined in subsection
(g)(ii) below) occurs and, within two (2) years following such Change of
Control, the Company terminates the Executive's employment other than for Cause,
or the Executive terminates his employment for Good Reason, and the Executive
executes the Executive Release within twenty-one (21) days of the date of notice
of termination of his employment and does not timely revoke it, then, in lieu of
any payment and benefits to which the Executive would otherwise be entitled
under Section 8(d) or 8(e) hereof, the Company:
(1) shall pay the Executive an amount equal
to twenty-four (24) months' base salary at the rate in effect on the
date of termination of the Executive's employment PLUS an amount equal
to two (2) times the bonus which the Executive earned for performance,
if any, during the calendar year immediately preceding the year in
which termination occurs, which the Executive may elect to receive (A)
in a single lump sum, payable within thirty (30) days following the
effective date of the Executive Release or (B) as salary continuation
payable at the Company's regular payroll periods and in accordance with
its regular payroll practices commencing on the next regular payday
following the effective date of the Executive Release, but retroactive
to the date of termination; and
(2) at the Executive's election, (A) shall
continue to pay, for the period of twenty-four months following
termination of the Executive's employment or, if earlier, until the
date the Executive is covered under another employer's health plan that
is comparable to that of the Company (the "POST-EMPLOYMENT HEALTH
COVERAGE PERIOD"), that share of the premium cost of Executive's
participation and that of his eligible dependents in the Company's
group health plan as it pays for active employees of the Company and
their eligible dependents generally OR (B) shall pay the Executive a
single lump sum payment equal to the amount that the Company would have
expended if participation had been elected and continued for a period
of twenty-four (24) months, which lump sum shall be payable within
thirty (30) days following the effective date of the Executive Release,
and the Executive and his eligible dependents may exercise their rights
under COBRA to continue participation in the group health plan at their
cost effective as of the date his employment terminates. Should the
Executive elect option (A) above, the period of any continued health
coverage to which the Executive and his eligible dependents may be
entitled under COBRA as a result of the Executive's termination of
employment will commence at the end of the above-defined
Post-Employment Health Coverage Period. Notwithstanding anything to the
contrary contained
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herein, the Executive may only elect option (A) directly above if the
Executive elects to receive payment under subparagraph (g)(i)(1) in the
form of salary continuation.
(3) If, in connection with a Change of
Control, any other employees of the Company who hold stock options will
have their options cashed out, the Executive shall have the right to
have all or any of such options cashed out on the same basis and at the
same time the options of such other employees are cashed out.
ii. Except as otherwise provided with respect to subparagraphs
(g)(i)(3) and (g)(i)(4) directly above, a "Change of Control" shall be deemed to
have occurred if hereafter:
(A) any "person", as such term is used in
Section 13(d) and 14(d) of the Securities Exchange Act of 1934 as
amended (the "EXCHANGE ACT") other than the Company or any of its
subsidiaries or affiliates or any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of its
subsidiaries or affiliates, becomes a beneficial owner (within the
meaning of Rule 13d-3, as amended, as promulgated under the Exchange
Act), directly or indirectly, of securities representing twenty-five
(25%) percent or more of the combined voting power of the Company's
then outstanding securities; or
(B) during any period of two consecutive
years (not including any period prior to the Effective Date),
individuals who at the beginning of such period constitute the Board of
Directors of the Company or, any new director (other than a director
designated by a person who has entered into an agreement with the
Company to effect a transaction described in clause (A), (C) or (D) of
this Section 8(g)(ii) whose election by the Board of Directors of the
Company or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the directors then still
in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof; or
(C) there occurs a merger or consolidation
of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than eighty percent (80%) of
the combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation; provided, however, that a merger or consolidation
effected to implement a recapitalization of the Company (or
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similar transaction) in which no "person" (as hereinabove defined)
acquires more than twenty-five percent (25%) of the combined voting
power of the Company's then outstanding securities shall not constitute
a Change of Control; or
(D) the stockholders of the Company approve
a plan of a complete liquidation of the Company; or
(E) there occurs a closing of a sale or
other disposition by the Company of all or substantially all of the
Company's assets.
9. NO REQUIREMENT TO MITIGATE. The Executive shall not be required to
mitigate the amount of any payment provided for in Section 8 by seeking other
employment or otherwise, nor shall the amount of any payment provided for in
Section 8 be reduced by any compensation earned by the Executive as the result
of employment by another employer after the date of termination of this
Agreement, or otherwise.
10. CONFIDENTIAL INFORMATION.
a. The Executive acknowledges that the Company, its
subsidiaries and affiliates continually develop Confidential Information, that
the Executive may develop Confidential Information for the Company, its
subsidiaries and affiliates and that the Executive may learn of Confidential
Information during the course of employment with the Company its subsidiaries
and affiliates. The Executive agrees to comply with the policies and procedures
of the Company for protecting Confidential Information and agrees that he shall
not disclose to any person, corporation or other entity, except as required for
the proper performance of his regular duties for the Company, and shall not use
for his own benefit or that of another, any Confidential Information obtained by
the Executive incident to his employment or other association with the Company
or its subsidiaries and affiliates. The Executive understands that this
restriction will continue to apply throughout his employment and after his
employment terminates, regardless of the reason for such termination; PROVIDED,
HOWEVER, that the obligations contained in this Section 10 shall not apply to
any Confidential Information that becomes publicly known through no fault of the
Executive or that the Executive is otherwise required by law or regulation to
disclose.
b. As used in this Agreement, "Confidential Information" means
any and all information of the Company, its subsidiaries and affiliates that is
not generally known by others with whom any of them competes or does business,
or with whom any of them plans to compete or do business, including without
limitation any and all information concerning the identity and special needs of
the customers of the Company, its subsidiaries and affiliates and the people and
organizations with whom any of them has business relationships and those
relationships. Confidential Information also includes any information received
by the Company, its subsidiaries or
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affiliates from others with any understanding, express or implied, that it will
not be disclosed.
11. NON-SOLICITATION. While the Executive is employed by the Company
and for a period of two years following the termination of his employment
pursuant to Sections 8(b),(c), (f) or (g) hereof or for a period of one year in
the event of termination pursuant to Sections 8(d) or (e) hereof:
(i) the Executive shall not, directly or indirectly, solicit
or encourage any customer of the Company, its subsidiaries or affiliates to
terminate or diminish substantially its relationship with the Company or any of
its subsidiaries or affiliates and
(ii) the Executive shall not, directly or indirectly, hire or
attempt to hire any executive personnel of the Company, it subsidiaries or
affiliates or solicit or encourage any executive personnel of the Company, its
subsidiaries or affiliates to discontinue employment with the Company.
For purposes of this Section 11, the term "months of severance pay" shall mean
the quotient of the total sum of payments to be made to the Executive under the
applicable termination provision divided by the Executive's base salary at the
monthly rate in effect on the date of termination.
12. REMEDIES. The Executive acknowledges that, if he were to breach any
of the provisions of Sections 10 or 11 of this Agreement, the harm to the
Company and would be irreparable. The Executive therefore agrees that, in
addition to any other remedies available to it, the Company shall be entitled to
obtain preliminary and permanent injunctive relief against any such breach,
without having to post bond.
13. TAXES. All payments made to the Executive under this Agreement
shall be reduced by any tax or other amount required to be withheld by the
Company under applicable law.
14. REDUCTIONS. Notwithstanding anything to the contrary contained in
this Agreement, (a) any and all payments and benefits to be provided to the
Executive hereunder are subject to reduction to the extent required by
applicable statutes, regulations, rules and directives of federal, state and
other governmental and regulatory bodies having jurisdiction over the Company,
and (b) the payments and benefits to which the Executive would be entitled
pursuant to Section 8(g) hereof or otherwise as a result of a Change of Control
shall be reduced to the maximum amount for which the Company will not be limited
in its deduction pursuant to Section 28OG of the Internal Revenue Code of 1986,
as amended, or any successor provision. Any such reduction shall be applied to
the amounts due to the Executive in such manner as the Executive may reasonably
specify within thirty (30) days following notice from the Company of the need
for such reduction or, if the Executive fails to so specify timely, as
determined by the Company.
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15. ASSIGNMENT. The Company may assign its rights and obligations under
this Agreement without the consent of the Executive in the event that the
Company shall hereafter effect a reorganization, consolidate with, or merge
into, any other person, corporation or other entity or transfer all or
substantially all of its assets to any other person, corporation or other entity
but only to such other person, corporation or other entity. The Company requires
the personal services of the Executive and he may not assign this Agreement.
This Agreement shall inure to the benefit of and be binding upon the Company and
the Executive and their respective successors, executors, administrators, heirs
and permitted assigns.
16. INDEMNIFICATION. The Company shall indemnify the Executive to the
maximum extent permitted by law and regulation in connection with any liability,
expense or damage which the Executive incurs or to which the Executive is
exposed as a result of the Executive's employment and positions with the
Company, its subsidiaries and affiliates, as contemplated by this Agreement,
provided that the Executive shall not be indemnified with respect to any matter
as to which he shall have been adjudicated in any proceeding not to have acted
in good faith in the reasonable belief that his action was in the best interest
of the Company. The Company hereby confirms that the occupancy of all offices
and positions with any subsidiary or affiliate of the Company which in the
future are occupied or held by the Executive will have been so occupied or held
at the request of and for the benefit of the Company for purposes of the
Executive's entitlement to indemnification under applicable provisions of the
respective articles of organization and/or other similar documents of the
Company.
17. MISCELLANEOUS. This Agreement sets forth the entire agreement
between the Company and the Executive and supersedes all prior communications,
agreements and understandings, whether written or oral, with respect to the
Executive's employment. The headings and captions contained herein are for
convenience of reference only and are not part of this Agreement. This Agreement
may not be modified or amended, and no breach of this Agreement shall be deemed
to be waived, unless agreed to in writing by the Executive and the Company. This
is a Massachusetts contract and shall be governed by and construed in accordance
with the laws of The Commonwealth of Massachusetts.
18. NOTICES. Any notices provided for in this Agreement shall be in
writing and shall be effective when delivered in person or deposited In the
United States mail, postage prepaid, and addressed to the Executive at his last
known address on the books of the Company or, in the case of the Company, at the
main office of the Company, attention of the Senior Vice President, Human
Resources.
19. SURVIVAL. Notwithstanding anything else herein contained, the
provisions of ss.ss.8, 9, 10, 11, 12, 14, 16, 18, 19 and 20 shall survive the
termination of this Agreement and of the Executive's employment by the Company
hereunder.
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20. GUARANTY OF PAYMENT AND PERFORMANCE. The Company agrees to cause
the Bank fully to perform its obligations under this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as an
instrument under seal as of the date first above written.
PEOPLE'S BANCSHARES, INC.:
By:
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PEOPLE'S SAVINGS BANK OF BROCKTON:
By:
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EXECUTIVE:
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XXXXX X. XXXX
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People's Bancshares, Inc. PEOPLE'S BANCSHARES, INC.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
RELEASE OF CLAIMS
FOR AND IN CONSIDERATION OF the special payments to be made to me in
connection with my separation of employment, as set forth in the employment
agreement between PEOPLE'S BANCSHARES, INC. and me dated as of the
_____________________ (the "Executive Employment Agreement") I, on my own behalf
and on behalf of my heirs, beneficiaries and representatives and all others
connected with me, hereby release and forever discharge PEOPLE'S BANCSHARES,
INC. (the "Company"), its subsidiaries and affiliates, and all of their
respective officers, directors, employees, agents, representatives, successors
and assigns and all others connected with them (all collectively, the
"Releasees"), both individually and in their official capacities, from any and
all liability, claims, demands, actions and causes of action of any type (all
collectively "Claims") which I have had in the past, now have, or might now
have, through the date of my execution of this Release of Claims, in any way
resulting from, arising out of or connected with my employment or its
termination or pursuant to any federal, state, or local employment law,
regulation or other requirement (including without limitation Title VII of the
Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act,
as amended, the Americans With Disabilities Act, as amended, and the
Massachusetts Fair Employment Practices Act, as amended.
Excluded from the scope of this Release of Claims is (i) any claim
arising hereafter under the terms of the Employment Agreement or under the terms
of any of the Company's employee qualified and non-qualified benefit plans
(including without limitation the Company's employee pension plan, profit
sharing plan or stock ownership plan) and (ii) any right of indemnification or
contribution pursuant to the Articles of Organization or By-Laws of the Company
that I have or hereafter acquire if any claim is asserted or proceedings are
brought against me by any governmental or regulatory agency, or by any customer,
creditor, employee or shareholder of the Company, or by any self-regulatory
organization, stock exchange or the like, related or allegedly related to my
having been an officer or employee of the Company or to any of my activities as
an officer or employee of the Company.
By acceptance of or reliance on this Release of Claims, the Company
promises that neither it nor any of the other Releasees affiliated with the
Company will take any action that is designed, specifically as to me or with
respect to a class of similarly situated former employees, to reduce or
abrogate, or that may reasonably be expected to result in an abridgment or
elimination of, any rights of indemnification or contribution available to me
pursuant to the Articles of Organization or By-Laws of the Company, or under any
policy or policies of directors and officers liability insurance affording
coverage to former officers and in effect from time to time, unless by such
abridgment or elimination of rights is also generally applicable to then-current
officers and employees of the Company.
In signing this Release of Claims, I acknowledge that I have had at
least twenty-one (21)
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days from the date of my receipt of notice of termination of my employment (or,
if applicable, the date I gave such notice to the Company) to consider the terms
of this Release of Claims, that I am encouraged by the Company to seek the
advice of an attorney prior to signing this Release of Claims and that I am
signing this Release of Claims voluntarily and with a full understanding of its
terms. I understand that I may revoke this Release of Claims at any time within
seven (7) days of the date of my signing by written notice to the President of
the Company and that this Release of Claims will take effect only upon the
expiration of such seven-day revocation period and only if I have not timely
revoked it.
IN WITNESS WHEREOF, I have set my hand and seal on the date written
below.
Signature:
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Date Signed:
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