Exhibit 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into
effective as of February 4, 2002, by and between Mystic Financial, Inc., a
publicly-held business corporation organized and operating under the laws of
the State of Delaware and having an office at 00 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 ("Company") and Xxxxxxx X. Xxxxx, an individual residing
at 00 Xxxxxx Xxxxx Xxxx, Xxxxx, Xxx Xxxxxxxxx 00000 ("Executive"). Any
reference to "Bank" herein shall mean Medford Co-operative Bank, a wholly-
owned subsidiary of the Company, or any successor thereto.
W i t n e s s e t h :
Whereas, Executive has been elected to serve the Company and the Bank
in the capacity of Chief Financial Officer; and
Whereas, the Company desires to assure for itself and for the Bank the
availability of Executive's services and the ability of Executive to perform
such services with a minimum of personal distraction in the event of a
pending or threatened Change of Control (as hereinafter defined); and
Whereas, Executive is willing to serve the Company and the Bank on the
terms and conditions hereinafter set forth;
Now, Therefore, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Company and Executive
hereby agree as follows:
Section 1. Employment.
The Company agrees to continue to employ Executive, and Executive
hereby agrees to such continued employment, during the period and upon the
terms and conditions set forth in this Agreement.
Section 2. Employment Period; Remaining Unexpired Employment Period.
(a) The terms and conditions of this Agreement shall be and remain
in effect during the period of employment established under this section 2
("Employment Period"). The Employment Period shall be for an initial term
of three (3) years beginning on the date of this Agreement and ending on the
third (3rd) anniversary date of this Agreement (each, an "Anniversary
Date"). Upon each Anniversary Date of this Agreement, the Board of
Directors of the Company ("Board") shall review the terms of this Agreement
and the Executive's performance of services hereunder and may, in the
absence of objection from the Executive, approve an extension of the
Employment Agreement to a new three year term. The "Remaining Unexpired
Employment Period"
at any date shall be the remaining period of the Employment Period after
giving effect to any extensions already authorized as of such date.
(b) Nothing in this Agreement shall be deemed to prohibit the
Company at any time from terminating the Executive's employment during the
Employment Period with or without notice for any reason; provided, however,
that the relative rights and obligations of the Company and Executive in the
event of any such termination shall be determined under this Agreement.
(c) Nothing in this Agreement shall be deemed to prohibit the
Executive at any time from terminating his employment during the Employment
Period with or without notice for any reason; provided, however, that the
relative rights and obligations of the Company and Executive in the event of
any such termination shall be determined under this Agreement.
Section 3. Duties.
The Executive shall serve as Chief Financial Officer of the Company
and the Bank, having such power, authority and responsibility and performing
such duties as are prescribed by or under the By-Laws of the Company and the
Bank and as are customarily associated with such positions. Executive shall
devote his full business time and attention (other than during weekends,
holidays, approved vacation periods, and periods of illness or approved
leaves of absence) to the business and affairs of the Company and the Bank
and shall use his best efforts to advance the interests of the Company and
the Bank.
Section 4. Cash Compensation.
In consideration for the services to be rendered by Executive
hereunder, the Company shall pay to him a salary at an initial annual rate
of ONE HUNDRED TEN THOUSAND DOLLARS ($110,000), payable in approximately
equal installments in accordance with the Company's or Bank's customary
payroll practices for senior officers. The Board shall review Executive's
annual rate of salary at such times during the Employment Period as it deems
appropriate, but not less frequently than once every twelve months, and may,
in its discretion, approve an increase in the Executive's annual rate of
salary. In addition to salary, Executive may receive other cash
compensation from the Company or the Bank for services hereunder at such
times, in such amounts and on such terms and conditions as the Board, as
applicable, may determine from time to time.
Section 5. Employee Benefit Plans and Programs.
During the Employment Period, Executive shall be treated as an
employee of the Company and the Bank and shall be entitled to participate in
and receive benefits under any and all qualified or non-qualified
retirement, pension, savings, profit-sharing or stock bonus plans, any and
all group life, health (including hospitalization, medical and major
medical), dental, accident and long-term disability insurance plans, and any
other employee benefit and compensation plans
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(including, but not limited to, any incentive compensation plans or
programs, stock option and appreciation rights plans and restricted stock
plans) as may from time to time be maintained by, or cover employees of, the
Company or the Bank, in accordance with the terms and conditions of such
employee benefit plans and programs and compensation plans and programs and
consistent with the Company's and Bank's customary practices. Nothing paid
to the Executive under any such plan or arrangement will be deemed to be in
lieu of other compensation to which the Executive is entitled under this
Agreement.
Section 6. Indemnification and Insurance.
(a) During the Employment Period and for so long as the Executive is
subject to suit on claims related to his performance of the duties described
in section 3 of this Agreement, the Company shall cause Executive to be
covered by and named as an insured under any policy or contract of insurance
obtained by it or the Bank to insure its directors and officers against
personal liability for acts or omissions in connection with service as an
officer or director of the Company or the Bank or service in other
capacities at the request of the Company or the Bank. The coverage
provided to Executive pursuant to this section 6 shall be of the same scope
and on the same terms and conditions as the coverage (if any) provided to
other officers or directors of the Company and the Bank.
(b) To the maximum extent permitted under applicable law, during the
Employment Period and for so long as the Executive is subject to suit on
claims related to his performance of the duties described in section 3 of
this Agreement, the Company shall indemnify Executive against and hold him
harmless from any costs, liabilities, losses and exposures to the fullest
extent and on the most favorable terms and conditions that similar
indemnification is offered to any director or officer of the Company, the
Bank, or any subsidiary or affiliate thereof.
Section 7. Outside Activities.
Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as he may disclose to and
as may be approved by the Board (which approval shall not be unreasonably
withheld); provided, however, that such service shall not materially
interfere with the performance of his duties under this Agreement.
Executive may also engage in personal business and investment activities
which do not materially interfere with the performance of his duties
hereunder; provided, however, that such activities are not prohibited under
any code of conduct or investment or securities trading policy established
by the Company and generally applicable to all similarly situated
executives. Executive may also serve as an officer or director of the Bank
on such terms and conditions as the Company and the Bank may mutually agree
upon, and such service shall not be deemed to materially interfere with
Executive's performance of his duties hereunder or otherwise result in a
material breach of this Agreement. If Executive is discharged or suspended,
or is subject to any regulatory prohibition or restriction, with respect to
participation in the affairs of the Bank, he shall continue to perform
services for the Company in accordance with this Agreement but shall not
directly or indirectly provide services to or participate
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in the affairs of the Bank in a manner inconsistent with the terms of such
discharge or suspension or any applicable regulatory order.
Section 8. Working Facilities and Expenses.
Executive's principal place of employment shall be at the Company's
executive offices at the address first above written, or at such other
location within Middlesex County at which the Company shall maintain its
principal executive offices, or at such other location as the Company and
Executive may mutually agree upon. The Company shall provide or cause the
Bank to provide the Executive at his principal place of employment with a
private office, secretarial services, and other support services and
facilities suitable to his position with the Company and necessary or
appropriate in connection with the performance of his assigned duties under
this Agreement. The Company shall reimburse Executive for his ordinary and
necessary business expenses, including, without limitation, fees for
memberships in such clubs and organizations as Executive and the Company
shall mutually agree are necessary and appropriate for business purposes and
his travel and entertainment expenses incurred in connection with the
performance of his duties under this Agreement, in each case upon
presentation to the Company of an itemized account of such expenses in such
form as the Company may reasonably require.
Section 9. Termination of Employment with Severance Benefits.
(a) Executive shall be entitled to the severance benefits described
in section 9(b) herein in the event that his employment with the Company or
the Bank terminates during the Employment Period under any of the following
circumstances:
(i) the Executive's employment is terminated by the Company or
the Bank during the Employment Period for any reason other than for
"cause" as defined in section 10(a); or
(ii) the Executive voluntarily resigns following a "Change of
Control" (as such term is defined in section 11(a) hereof) in the
manner set forth in section 11(b) hereof;
then, the Company shall provide (or cause the Bank or pay and provide) the
benefits and pay to Executive the amounts described in section 9(b).
(b) Upon the termination of Executive's employment with the Company
or the Bank under circumstances described in section 9(a) of this Agreement,
the Company shall pay and provide (or cause the Bank to pay and provide) to
Executive (or, in the event of his death, to his estate):
(i) the portion, if any, of the compensation earned by the
Executive through the date of the termination of his employment with
the Company and the Bank which remains unpaid as of such date, such
payment to be made at the time and
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in the manner prescribed by law applicable to the payment of wages but
in no event later than thirty (30) days after the Executive's
termination of employment;
(ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and
compensation plans and programs maintained by the Company and the Bank
for their officers and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long-term disability
coverage plans under the plans and programs maintained by the Bank for
similarly situated employees until the earlier to occur of:
(A) the date the Executive first becomes eligible for
such benefit coverage plans under the plans or programs
maintained by a subsequent employer; or
(B) the date the Remaining Unexpired Employment Period
terminates; and
(iv) within thirty (30) days following his termination of
employment with the Company and the Bank, a lump sum payment, in an
amount equal to the present value of the salary that Executive would
have earned if he had continued working for the Company during the
Remaining Unexpired Employment Period at the highest annual rate of
salary achieved during that portion of the Employment Period which is
prior to Executive's termination of employment with the Company, where
such present value is to be determined using a discount rate equal to
the applicable short-term federal rate prescribed under section
1274(d) of the Internal Revenue Code of 1986 ("Code"), compounded
using the compounding period corresponding to the Company's regular
payroll periods for its officers, such lump sum to be paid in lieu of
all other payments of salary provided for under this Agreement in
respect of the period following any such termination.
The Company and Executive hereby stipulate that the damages which may be
incurred by Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that
the payments and benefits contemplated by this section 9(b) constitute
reasonable damages under the circumstances and shall be payable without any
requirement of proof of actual damage and without regard to Executive's
efforts, if any, to mitigate damages. The Company and Executive further
agree that the Company may condition the payments and benefits (if any) due
under sections 9(b)(iii) and 9(b)(iv) on the receipt of Executive's
resignation from any and all positions which he holds as an officer,
director or committee member with respect to the Company, the Bank or any
subsidiary or affiliate of either of them.
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Section 10. Termination without Additional Company Liability.
In the event that Executive's employment with the Company shall
terminate during the Employment Period on account of:
(a) the discharge of the Executive for "cause," which, for
purposes of this Agreement shall mean 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
any material breach of this Agreement, in each case as measured
against standards generally prevailing at the relevant time in the
savings and community banking industry;
(b) the Executive's voluntary resignation from employment with
the Company, other than a voluntary resignation by the Executive that
occurs within ninety (90) days after the effective date of a Change of
Control; or
(c) the Executive's death; or
(d) a determination that the Executive is eligible for long-
term disability benefits under the Bank's long-term disability
insurance program or, if there is no such program, under the federal
Social Security Act;
then the Company (and its affiliates) shall have no further obligations
under this Agreement, other than the payment to Executive (or, in the event
of his death, to his estate) of the portion, if any, of the salary earned by
the Executive through the date of his termination of employment with the
Company which remains unpaid as of such date and the provision of such other
benefits, if any, to which he is entitled as a former employee under the
employee benefit plans and programs and compensation plans and programs
maintained by, or covering employees of, the Company or the Bank.
For purposes of section 10(a), no act or failure to act, on the part
of Executive, shall be considered "willful" unless it is done, or omitted to
be done, by Executive in bad faith or without reasonable belief that
Executive's action or omission was in the best interests of the Company and
its affiliates. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon the written
advice of counsel for the Company shall be conclusively presumed to be done,
or omitted to be done, by Executive in good faith and in the best interests
of the Company. The cessation of employment of Executive shall not be
deemed to be for "cause" within the meaning of section 10(a) unless and
until there shall have been delivered to Executive a copy of a resolution
duly adopted by the affirmative vote of three-fourths of the non-employee
members of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to Executive and Executive is
given an opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, Executive is guilty of
the conduct described in section 10(a) above, and specifying the particulars
thereof in detail.
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Section 11. Termination Upon or Following a Change of Control.
(a) A Change of Control of the Company ("Change of Control") shall
be deemed to have occurred upon the happening of any of the following
events:
(i) approval by the stockholders of the Company of a
transaction that would result in the reorganization, merger or
consolidation of the Company, respectively, with one or more other
persons, other than a transaction following which:
(A) at least 51% of the equity ownership interests of
the entity resulting from such transaction are beneficially
owned (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended "Exchange Act") in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the Exchange
Act) at least 51% of the outstanding equity ownership interests
in the Company; and
(B) at least 51% of the securities entitled to vote
generally in the election of directors of the entity resulting
from such transaction are beneficially owned (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the Exchange
Act) at least 51% of the securities entitled to vote generally
in the election of directors of the Company;
(ii) the acquisition of all or substantially all of the assets
of the Company or beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 25% or more of the
outstanding securities of the Company entitled to vote generally in
the election of directors by any person or by any persons acting in
concert, or approval by the stockholders of the Company of any
transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Company, or
approval by the stockholders of the Company of a plan for such
liquidation or dissolution;
(iv) the occurrence of any event if, immediately following such
event, at least 50% of the members of the Board of the Company do not
belong to any of the following groups:
(A) individuals who were members of the Board of the
Company on the date of this Agreement; or
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(B) individuals who first became members of the Board of
the Company after the date of this Agreement either:
(I) upon election to serve as a member of the
Board of the Company by affirmative vote of three-quarters
of the members of such Board, or of a nominating committee
thereof, in office at the time of such first election; or
(II) upon election by the stockholders of the
Company to serve as a member of the Board of the Company,
but only if nominated for election by affirmative vote of
three-quarters of the members of the Board of the Company,
or of a nominating committee thereof, in office at the
time of such first nomination;
provided, however, that such individual's election or nomination
did not result from an actual or threatened election contest
(within the meaning of Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) or other actual or threatened
solicitation of proxies or consents (within the meaning of Rule
14a-11 of Regulation 14A promulgated under the Exchange Act)
other than by or on behalf of the Board of the Company; or
(v) any event which would be described in section 11(a)(i),
(ii), (iii) or (iv) if the term "Bank" were substituted for the term
"Company" each time the term appears therein.
In no event, however, shall a Change of Control be deemed to have occurred
as a result of any acquisition of securities or assets of the Company, the
Bank, or a subsidiary of either of them, by the Company, the Bank, or a
subsidiary of either of them, or by any employee benefit plan maintained by
any of them. For purposes of this section 11(a), the term "person" shall
have the meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the
Exchange Act.
(b) In the event that the Executive's employment with the Company
terminates due to his voluntary resignation within ninety (90) days
following the effective date of a Change of Control, Executive shall be
entitled to the payments and benefits contemplated by section 9(b);
provided, however, that the benefit owed under section 9(b)(iv) shall be
calculated as if the Remaining Unexpired Employment Period was a fixed term
of three (3) years.
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Section 12. Tax Indemnification.
(a) This section 12 shall apply if Executive's employment is
terminated upon or following (i) a Change of Control (as defined in section
11 of this Agreement); or (ii) a change "in the ownership or effective
control" of the Company or the Bank or "in the ownership of a substantial
portion of the assets" of the Company or the Bank within the meaning of
section 280G of the Code. If this section 12 applies, then, if for any
taxable year, Executive shall be liable for the payment of an excise tax
under section 4999 of the Code with respect to any payment in the nature of
compensation made by the Company, the Bank or any direct or indirect
subsidiary or affiliate of the Company or the Bank to (or for the benefit
of) Executive, it shall be the sole obligation and responsibility of the
Company to pay to Executive an amount equal to X, determined under the
following formula:
E x P
X ------------------------------------
1 - [(FI x (1 - SLI)) + SLI + E + M]
where
E = the rate at which the excise tax is assessed under section
4999 of the Code;
P = the amount with respect to which such excise tax is
assessed, determined without regard to this section 12;
FI = the highest marginal rate of income tax applicable to the
Executive under the Code for the taxable year in question;
SLI = the sum of the highest marginal rates of income tax
applicable to the Executive under all applicable state and
local laws for the taxable year in question; and
M = the highest marginal rate of Medicare tax applicable to
the Executive under the Code for the taxable year in
question.
With respect to any payment in the nature of compensation that is made to
(or for the benefit of) Executive under the terms of this Agreement, or
otherwise, and on which an excise tax under section 4999 of the Code will be
assessed, the payment determined under this section 12(a) shall be made to
Executive on the earlier of (i) the date the Company, the Bank or any direct
or indirect subsidiary or affiliate of the Company or the Bank is required
to withhold such tax, or (ii) the date the tax is required to be paid by
Executive.
(b) Notwithstanding anything in this section 12 to the contrary, in
the event that Executive's liability for the excise tax under section 4999
of the Code for a taxable year is subsequently determined to be different
than the amount determined by the formula (X + P) x E, where X, P and E have
the meanings provided in section 12(a), Executive or the Company, as the
case may be, shall pay to the other party at the time that the amount of
such excise tax is finally determined,
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an appropriate amount, plus interest, such that the payment made under
section 12(a), when increased by the amount of the payment made to Executive
under this section 12(b) by the Company, or when reduced by the amount of
the payment made to the Company under this section 12(b) by Executive,
equals the amount that should have properly been paid to Executive under
section 12(a). The interest paid under this section 12(b) shall be
determined at the rate provided under section 1274(b)(2)(B) of the Code. To
confirm that the proper amount, if any, was paid to Executive under this
section 12, Executive shall furnish to the Company a copy of each tax return
which reflects a liability for an excise tax payment made by the Company, at
least 20 days before the date on which such return is required to be filed
with the Internal Revenue Service.
Section 13. Protective Covenants
(a) Non-Competition. The Executive hereby covenants and agrees
that, in the event of his termination of employment with the Company prior
to the expiration of the Employment Period, for a period of one (1) year
following the date of his termination of employment with the Company or the
Bank, he shall not, without the written consent of the Company, become an
officer, employee, consultant, director or trustee of any savings bank,
savings and loan association, savings and loan holding company, bank or bank
holding company, any other entity engaged in the business of accepting
deposits or making loans, or any direct or indirect subsidiary or affiliate
of any such entity having its principal office located in Middlesex County;
provided, however, that this section 13(a) shall not apply if the
Executive's employment is terminated with cause or due to death, or a
voluntary or involuntary termination following a "Change of Control" as
defined in section 11(a) hereof.
(b) Confidentiality. Unless he obtains the prior written consent of
the Company, the Executive shall keep confidential and shall refrain from
using for the benefit of himself, or any person or entity other than the
Company or any entity which is a subsidiary of the Company or of which the
Company is a subsidiary, any material document or information obtained from
the Company, or from its parent or subsidiaries, in the course of his
employment with any of them concerning their properties, operations or
business (unless such document or information is readily ascertainable from
public or published information or trade sources or has otherwise been made
available to the public through no fault of her own) until the same ceases
to be material (or becomes so ascertainable or available); provided,
however, that nothing in this section 13(b) shall prevent the Executive,
with or without the Company's consent, from participating in or disclosing
documents or information in connection with any judicial or administrative
investigation, inquiry or proceeding to the extent that such participation
or disclosure is required under applicable law.
(c) Solicitation. The Executive hereby covenants and agrees that,
for a period of one (1) year following his termination of employment with
the Company or the Bank, he shall not, without the written consent of the
Company and the Bank, either directly or indirectly:
(i) solicit, offer employment to, or take any other action
intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any officer or employee of
the Company, the Bank or any of their respective subsidiaries or
affiliates to terminate his or her employment and accept employment
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or become affiliated with, or provide services for compensation in any
capacity whatsoever to, any savings bank, savings and loan
association, bank, bank holding company, savings and loan holding
company, or other institution engaged in the business of accepting
deposits, making loans or doing business and having its principal
office located in Middlesex County;
(ii) provide any information, advice or recommendation with
respect to any such officer or employee of any savings bank, savings
and loan association, bank, bank holding company, savings and loan
holding company, or other institution engaged in the business of
accepting deposits, making loans or doing business within Middlesex
County; that is intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any officer
or employee of the Company, the Bank, or any of their respective
subsidiaries or affiliates to terminate his employment and accept
employment or become affiliated with, or provide services for
compensation in any capacity whatsoever to, any savings bank, savings
and loan association, bank, bank holding company, savings and loan
holding company, or other institution engaged in the business of
accepting deposits, making loans or doing business and having its
principal office located in Middlesex County;
(iii) solicit, provide any information, advice or recommendation
or take any other action intended, or that a reasonable person acting
in like circumstances would expect, to have the effect of causing any
customer of the Company to terminate an existing business or
commercial relationship with the Company.
(d) Survival of the Section 13 Provisions. The provisions of this
section 13 shall survive the termination or expiration of this Agreement,
and the existence of any claim or cause of action of the Executive against
the Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of such covenant.
Section 14. No Effect on Employee Benefit Plans or Programs.
The termination of Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by Executive, shall have
no effect on the rights and obligations of the parties hereto under the
Company's or Bank's qualified or non-qualified retirement, pension, savings,
thrift, profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long-term
disability insurance plans or such other employee benefit plans or programs,
or compensation plans or programs, as may be maintained by, or cover
employees of, the Company or the Bank from time to time.
Section 15. Company Stock Rights.
(a) At the election of the Company made within thirty (30) days
following the Executive's termination of employment with the Company, the
Company may request the surrender of options or appreciation rights issued
to Executive under any stock option and appreciation rights
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plan or program maintained by, or covering employees of, the Company or the
Bank, in exchange for which the Company agrees to pay a lump sum payment in
an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of
stock of the same class as the stock subject to the option or
appreciation right, determined as of the date of termination of
employment, over (II) the exercise price per share for such option or
appreciation right, as specified in or under the relevant plan or
program; multiplied by
(B) the number of shares with respect to which options or
appreciation rights are being surrendered.
(b) At the election of the Company made within thirty (30) days
following the Executive's termination of employment with the Company, the
Company may request the surrender of any unvested shares awarded to
Executive under any restricted stock plan maintained by, or covering
employees of, the Company or the Bank, in exchange for which the Company
agrees to pay a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same
class of stock granted under such plan, determined as of the date of
Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered.
Section 16. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon
Executive, his legal representatives and testate or intestate distributees,
and the Company and its successors and assigns, including any successor by
merger or consolidation or a statutory receiver or any other person or firm
or corporation to which all or substantially all of the assets and business
of the Company may be sold or otherwise transferred.
Section 17. Notices.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent,
instruction, objection or waiver, shall be in writing and shall be deemed to
have been given at such time as it is delivered personally, or five (5) days
after mailing if mailed, postage prepaid, by registered or certified mail,
return receipt requested, addressed to such party at the address listed
below or at such other address as one such party may by written notice
specify to the other party:
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If to the Executive:
Xx. Xxxxxxx X. Xxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxx, Xxx Xxxxxxxxx 00000
If to the Company:
Mystic Financial, Inc.
00 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Xxxxxxxx & Wood
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Section 18. Severability.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
Section 19. Waiver.
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be
made in writing, designated as a waiver, and signed by the party against
whom its enforcement is sought. Any waiver or relinquishment of any right
or power hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 20. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original, and all of which shall constitute one
and the same Agreement.
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Section 21. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent
that federal law is inapplicable, in accordance with the internal laws of
the Commonwealth of Massachusetts applicable to contracts entered into
among parties all of whom are citizens and residents of the Commonwealth of
Massachusetts and to be performed entirely within the Commonwealth of
Massachusetts, irrespective of the actual citizenship or residency of the
parties.
Section 22. Headings and Construction.
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this
Agreement, unless otherwise stated.
Section 23. Entire Agreement; Modifications.
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all
prior agreements, understandings or representations relating to the subject
matter hereof. No modifications of this Agreement shall be valid unless
made in writing and signed by the parties hereto.
Section 24. Non-duplication.
In the event that Executive shall perform services for the Bank or any
other direct or indirect subsidiary of the Company, any compensation or
benefits provided to Executive by such other employer shall be applied to
offset the obligations of the Company hereunder, it being intended that this
Agreement set forth the aggregate compensation and benefits payable to
Executive for all services to the Company and all of its direct or indirect
subsidiaries, including the Bank.
Section 25. Required Regulatory Provisions.
Notwithstanding anything herein contained to the contrary, any
payments to Executive by the Company, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with section
18(k) of the Federal Deposit Insurance Act, 12 U.S.C. [SECTION]1828(k), and
any regulations promulgated thereunder.
Section 26. Company and Affiliates.
The Company may satisfy its obligations under this Agreement either
directly or indirectly through one or more direct or indirect subsidiaries
or affiliates. The Executive agrees that this Agreement requires that the
Executive make his services available to the Company, the Bank and their
respective direct or indirect subsidiaries or affiliates as determined by
the respective Boards
14
of Directors of the Company and the Bank within the terms and conditions set
forth in this Agreement.
In Witness Whereof, the Company has caused this Agreement to be
executed and Executive has hereunto set his hand, all as of the day and year
first above written.
------------------------------------
Xxxxxxx X. Xxxxx
ATTEST: Mystic Financial, Inc.
By ------------------------------- By --------------------------------
Secretary Name:
Title:
[Seal]
00
XXXXXXXXXXXX XX XXXXXXXXXXXXX )
: ss.:
COUNTY OF MIDDLESEX )
On this ________ day of ____________________, 2002, before me
personally came Xxxxxxx X. Xxxxx, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me duly
sworn, did depose and say that he resides at the address set forth in said
instrument, and that he signed his name to the foregoing instrument.
------------------------------------
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF MIDDLESEX )
On this ________ day of ____________________, 2002, before me
personally came _____________________________, to me known, who, being by me
duly sworn, did depose and say that he resides at _________________________,
that he is a member of the Board of Directors of Mystic Financial, Inc., the
Delaware corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such seal; that it was so affixed by order of
the Board of Directors of said corporation; and that he signed his name
thereto by like order.
------------------------------------
Notary Public
16
