EXHIBIT 10.7.2
XXXXXXX X. XXXXXX, XX.
Xxxxxxxxx 0, 0000
Xxxxxxxx Xxxxxxxx Bancorp, M.H.C.
00 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, President and CEO
RE: CONSULTING AND NONCOMPETITION AGREEMENT
Gentlemen:
I am writing to confirm the arrangement we have agreed upon with
respect to certain assurances you have requested me to provide to Xxxxxxxx
Xxxxxxxx Bancorp, M.H.C. and its affiliates ("YOU" or "BANCORP"). I am a
stockholder of, and have served as, President and Chief Executive Officer of
Chart Bank, a Co-operative Bank ("CHART"). As you know, Chart is about to enter
into an Agreement and Plan of Merger dated as of the date hereof (the "MERGER
AGREEMENT") pursuant to which Chart will be acquired by Bancorp. Capitalized
terms used and not defined in this Agreement shall have the meanings defined in
the Merger Agreement.
We have agreed as follows:
1. BACKGROUND. I have served as President and Chief Executive Officer
of Chart since its reorganization in 1996 from a mutual to a stock institution
in a supervisory stock conversion and prior to that time I served as President.
During my tenure, Chart has achieved substantial growth. As a result of my
employment, I have acquired unique and substantial knowledge concerning the
business of providing banking services in the highly competitive market area
served by Chart (the "BUSINESS"), as well as confidential and proprietary
information concerning the Business and Chart. In order to induce you to enter
into the Merger Agreement, you have requested me to provide you with certain
agreements and assurances. By means of this Agreement, I am doing so.
2. CONSULTING SERVICES. You have requested that I provide consulting
services to you during the one-year period next following the Closing Date under
the Merger Agreement (the "CONSULTING PERIOD") with respect to the Business. I
hereby agree to serve Bancorp as an independent consultant to perform such
services related to the Business as Bancorp may request me to provide from time
to time during the Consulting Period (the "CONSULTING SERVICES"). All such
Consulting Services shall be provided to Bancorp on the terms and conditions set
forth in this Agreement. While performing Consulting Services, I shall comply
with all rules, procedures and standards promulgated from time to time by
Bancorp with regard to my conduct and my access to and use of Bancorp's
property, equipment and facilities. I understand that my
Consulting Services may be provided in person, telephonically, electronically or
by correspondence to the extent appropriate under the circumstances.
3. COMPENSATION. My compensation for all services to be performed under
this Agreement shall be $150,000 per year, payable no less often than monthly in
arrears during the Consulting Period. In addition, Bancorp shall reimburse me
for travel and other expenses incurred in connection with the services provided
pursuant to this Agreement, subject to the policies of Bancorp with respect to
reimbursement of employee expenses. All payments hereunder shall, at my
direction, be made to any entity I may establish from time to time in connection
with my performance of consulting services.
4. LOCATION OF CONSULTING SERVICES. I agree to provide Consulting
Services in the market area of Chart prior to its acquisition by Bancorp. I
agree to consult at Bancorp's offices or at another location within Bancorp's
Immediate Market Area (as defined in Section 7(a)) mutually agreed to, up to a
maximum of five (5) business days per month.
5. NATURE OF CONSULTING SERVICES. While President and Chief Executive
Officer, I was integrally involved in the development of a business plan for
Chart, which resulted in Chart remaining competitive in a highly competitive
market area. Chart's market area is at a considerable geographic distance from
the market areas served by Bancorp Bank, and such market area has demographics
and competitive factors that are significantly different from those in the
market areas served by Bancorp Bank. To assist Bancorp in managing the necessary
knowledge and experience to successfully operate in Chart's market area, I agree
to provide Bancorp with:
(a) CONSULTING SERVICES REGARDING OPERATION OF CSSI BUSINESS MODEL.
Bancorp is not familiar with the operation of CSSI, Chart's subsidiary
which is in the business of managing cash for ATM's under contract. I will
consult with Bancorp management to provide guidance as to the operation of
the CSSI portion of the Business and as to CSSI generally.
(b) CONSULTING SERVICES REGARDING MARKET AREA OF CHART. I will
consult with Bancorp management to provide the expertise that I have
gained during my tenure as the chief executive of Chart regarding Chart's
market area. I will work with management to continue Chart's branch
offices' growth in the area of deposits and loans and in their efforts to
have Bancorp become competitive in Chart's market area. In addition, I
will work with Bancorp management in serving the needs of the low- and
moderate-income families in Chart's market area.
(c) CONSULTING SERVICES REGARDING MARKETING AND BUSINESS HISTORY. I
will provide Bancorp with a full background of the historical operations
of Chart to the best of my knowledge, including information on the
marketing approaches that Chart has used to retain and attract customers.
(d) CONSULTING SERVICES REGARDING INTEGRATION OF OPERATIONS AND OF
PERSONNEL. I will consult with Bancorp to assist in the successful
integration of Chart's operations with Bancorp Bank's operations. I will
work with Bancorp management in their efforts to
- 2 -
ensure that those Chart employees who become employees of Bancorp Bank
continue as valuable employees who contribute to the overall success and
growth of Bancorp and are successfully integrated into Bancorp's corporate
culture.
(e) INTRODUCTION TO COMMERCIAL BORROWERS. A significant source of
Chart's success has been derived from its uniquely favorable relationships
with its commercial borrowers, especially including borrowers owning
multi-family apartment units in Chart's market area. In the course of my
activities as an officer of Chart, I have been directly involved with the
administration of Chart's business with these customers. I will endeavor
to assist Bancorp in ensuring that these customers remain customers of
Bancorp Bank after the Merger.
6. INDEPENDENT CONTRACTOR. In furnishing such services, I understand
that I will at all times be acting as an independent contractor of Bancorp,
acting for Bancorp only on a temporary basis, during the Consulting Period. As
such, I understand that my relationship with Bancorp is only intended to last
for a defined period of time so as to permit Bancorp to become fully conversant
with the operations of the Business and to provide for a transition pursuant to
which Chart customers will become accustomed to dealing with individuals other
than me in connection with the Business. I understand and agree that I will not
be an employee of Bancorp and will not, by reason of this Agreement or by reason
of my services to Bancorp, be entitled to participate in, or to receive any
benefit or right under, any of Bancorp's employee benefit or welfare plans,
except to the extent applicable to me as a Director of Bancorp. I will be
responsible for paying all Social Security, withholding and other taxes required
by law to be paid as and when the same become due and payable.
7. NONCOMPETITION AND NONSOLICITATION.
(a) NONCOMPETITION. During the Consulting Period, I will not, except
as provided in the second paragraph of this Section 7(a), (i) alone, or as
a member, employee, agent, consultant, advisor, independent contractor,
partner, officer, director, stockholder, investor, lender or guarantor of
any corporation, partnership or other entity, or in any other capacity,
directly or indirectly compete in Massachusetts with the business
conducted by Chart, Bancorp, Bancorp Bank, or any affiliate of any of the
foregoing, or (ii) directly or indirectly become a director, officer,
employee, principal, agent, consultant or independent contractor of any
insured depository institution, trust company or parent holding company of
any such institution or company which has an office in Massachusetts (a
"COMPETING BUSINESS") other than Bancorp or any of its subsidiaries,
provided, however, that this provision shall not prohibit me from owning
bonds, non-voting preferred stock or up to four percent (4%) of the
outstanding common stock of any such entity if such common stock is
publicly traded.
Notwithstanding the foregoing, I will be entitled to act as a
consultant or independent contractor for an insured depository
institution, trust company or parent holding company that is headquartered
outside of the Immediate Market Area, as long as I do not perform such
consulting or contracting services from an office that is within the
Immediate Market Area or with respect to such institution's or company's
operations
- 3 -
within the Immediate Market Area. "Immediate Market Area" means the cities
and towns listed on Exhibit A.
(b) NONSOLICITATION. During the Consulting Period and for a one-year
period thereafter, I will not (i) solicit or induce, or cause others to
solicit or induce, any employee of Bancorp or any of its subsidiaries to
leave the employment of such entities, (ii) hire or attempt to hire any
employee of Bancorp or any of its subsidiaries or assist in such hiring by
any other Person, or (iii) solicit or encourage (whether by mail,
telephone, personal meeting or any other means) any customer of Bancorp or
any of its subsidiaries to transact business of the type conducted by
Bancorp with any other entity, whether or not a Competing Business, or to
reduce or refrain from doing any business with Bancorp or its
subsidiaries, or interfere with or damage (or attempt to interfere with or
damage) any relationship between Bancorp or its subsidiaries and any such
customers.
8. TERMINATION BY BANCORP. I understand that my relationship with
Bancorp may only be terminated by Bancorp for "Cause," after written notice
specifying the basis for Bancorp's belief that there is a basis for termination
for Cause. For purposes of this Agreement, termination for Cause shall mean
termination because of my personal dishonesty, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any federal or state law, rule, regulation (other
than traffic violations or similar offenses), final cease and desist order or
material breach of any provision of this Agreement.
9. NO DISCLOSURE OF CONFIDENTIAL INFORMATION. While providing the
Consulting Services to Bancorp and for a period of five years thereafter, I
shall not, directly or indirectly, use any Confidential Information (as
hereinafter defined) other than pursuant to my provision of the Consulting
Services by and for the benefit of Bancorp, or disclose to anyone outside of
Bancorp any such Confidential Information. The term "CONFIDENTIAL INFORMATION"
as used throughout this Agreement shall mean all names of customers of Chart,
Bancorp or any subsidiary of either (each, a "BANCORP ENTITY" and collectively,
the "BANCORP ENTITIES") and all trade secrets, proprietary information and other
data or information (and any tangible evidence, record or representation
thereof), whether prepared, conceived or developed by a consultant or employee
of a Bancorp Entity (including myself) or received by a Bancorp Entity from an
outside source, which (i) is in the possession of a Bancorp Entity (whether or
not the property of a Bancorp Entity) and which is maintained in secrecy or
confidence by a Bancorp Entity or which might permit any Bancorp Entity or its
customers to obtain a competitive advantage over competitors who do not have
access to such trade secrets, proprietary information, or other data or
information. Notwithstanding the foregoing, the term Confidential Information
shall not apply to information which any Bancorp Entity or employee thereof
(other than myself) has voluntarily disclosed to the public without restriction
or which has otherwise lawfully entered the public domain. I understand that a
Bancorp Entity from time to time has in its possession information which
represents information which is claimed by others to be proprietary and which
such Bancorp Entity has agreed to keep confidential. I agree that all such
information shall be Confidential Information for purposes of this Agreement.
10. ALL CONFIDENTIAL INFORMATION PROPERTY OF BANCORP. I agree that all
originals and all copies of materials containing, representing, evidencing,
recording or constituting any
- 4 -
Confidential Information, however and whenever produced (whether by myself or
others), shall be the sole property of Bancorp.
11. RESOLUTION OF DISPUTES; SEVERABILITY.
(a) Except as provided by Section 11(b), any dispute or controversy
arising under or in connection with this Agreement may, at either Xxx
Xxxxxxxx'x or my option, be settled exclusively by arbitration in Boston,
Massachusetts in accordance with the rules of the American Arbitration
Association ("AAA") then in effect and (with respect to the costs of the
arbitration) at Xxx Xxxxxxxx'x expense. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The prevailing party
in any such arbitration shall be entitled to recover his or its reasonable
attorney's fees and related out-of-pocket expenses incurred in connection
with such arbitration.
(b) Notwithstanding the applicability of the AAA's Emergency Interim
Relief Procedures, a party may initiate an action in a court of competent
jurisdiction and may seek interim measures (including without limitation
temporary restraining orders and preliminary injunctions) necessary to
protect the interests of such party pending the arbitration. In such case,
the court shall be free to act on all requests for interim measures from
time to time, but shall otherwise stay the action pending the arbitration
(which the court may compel). If any such action is still pending at the
time of the arbitrator's award, either party may apply to such court for
entry of judgment on, and enforcement of, the arbitrator's award,
including without limitation any equitable relief awarded by the
Arbitrator's.
(c) The parties hereby request that any arbitrator who may be
requested to enforce this Agreement do so in accordance with its specific
terms. However, if it should for some reason be contrary to public policy
to effectuate the intentions of the parties in interpreting this
Agreement, the parties have agreed as follows:
(i) In the event that the arbitrator determines that any provision
of this Agreement is invalid or unenforceable by reason of its extending
for too great a period of time or over too large a geographic area or over
too great a range of activities, the parties shall use their reasonable
best efforts to substitute a valid, legal and enforceable provision which,
insofar as practicable, implements the original purposes and intents of
this Agreement. If the parties are unable to agree on such a substitute
provision, the arbitrator shall have the power to reduce the scope,
duration, or geographic area of the term or provision, to delete specific
words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified
after the expiration of the time within which the decision may be
appealed.
(ii) If, after application of the immediately preceding Section, the
arbitrator shall determine that any provision of this Agreement is
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the other provisions of this Agreement shall not be
affected thereby. Any invalid, illegal or unenforceable provision
- 5 -
of this Agreement shall be severable, and after any such severance, all
other provisions hereof shall remain in full force and effect.
12. NOTICES. Any notice given pursuant to this Agreement shall be in
writing and shall be sufficiently given if personally delivered or sent by
registered or certified mail, return receipt requested, postage prepaid, to the
parties at their addresses set forth in this Agreement or to such other address
as any party may hereafter designate to the others by like notice. Notices shall
be deemed given when personally delivered, or, if mailed, on the earlier of (i)
the third day after being deposited in the mails as aforesaid and (ii) the date
on which received. The foregoing provisions shall not, however, prohibit the
giving of actual written notice in any other manner.
13. ENTIRE AGREEMENT/MODIFICATION/WAIVER. This Agreement sets forth the
entire understanding between the parties relating to the subject matter hereof
and supersedes all prior correspondence, conversations and memoranda or other
writings between them with respect to such subject matter. No promises,
covenants or representations of any character or nature other than those
expressly stated herein have been made to induce either party to enter into this
Agreement. Neither this Agreement nor any part hereof may be modified, amended,
terminated, waived or discharged except by a writing duly signed by the party
sought to be bound. Failure by Bancorp to insist upon strict compliance with any
of the terms, covenants, or conditions hereof shall not be deemed a waiver of
such terms, covenants or conditions.
14. TERM; SURVIVAL OF TERMS. The term of this Agreement shall be for
one year following the Closing Date of the Merger. Except for my obligations
under (i) Section 7(b) hereof, which shall extend for one year after the
expiration of this Agreement, and (ii) Section 9 hereof, which shall extend for
five years after the expiration of this Agreement, my obligations hereunder
shall not survive the expiration of this Agreement.
15. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the substantive laws of The Commonwealth of
Massachusetts without regard to its principles of conflicts of laws. This
Agreement is executed under seal.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other party, it being understood that both parties
need not sign the same counterpart. Facsimile execution and delivery of this
Agreement by any party shall be legal, valid and binding execution and delivery
for all purposes.
17. INTERPRETATION. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
18. EFFECTIVENESS. Notwithstanding anything herein to the contrary, the
effectiveness of this Agreement shall be subject to consummation of the Merger
in accordance with the terms of the Merger Agreement, as the same may be amended
by the parties thereto in accordance with its terms.
- 6 -
Please confirm that the foregoing represents our mutual understanding
by signing and returning to me a copy of this Agreement.
/s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------
Xxxxxxx X. Xxxxxx, Xx.
0 Xxxxx Xxxxxxx Xxx
Xxxx, XX 00000
Agreed to and Accepted:
XXXXXXXX XXXXXXXX BANCORP, M.H.C.
By:/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
President and CEO
- 7 -
Exhibit A
Immediate Market Area
Arlington Milford
Ashland Millis
Avon N. Attleboro
Bellingham Natick
Belmont Needham
Brookline Xxxxxx
Cambridge Xxxxxxx
Xxxxxx Xxxxxxxx
Dedham Xxxxxx
Xxxxx Sherborn
Foxborough Southborough
Framingham Xxxxxxxxx
Xxxxxxxx Sudbury
Holliston Walpole
Hopkinton Watertown
Lexington Xxxxxxx
Xxxxxxx Wellesley
Mansfield Westborough
Marlborough Weston
Medfield Westwood
Medway Wrentham
- 8 -
