EXHIBIT 10.2
CHANGE IN CONTROL AGREEMENT
AGREEMENT made as of the [__] day of [_____], 2005, by and among Xxxxxxxx
Xxxxxxxx Bancorp, Inc., a Massachusetts corporation (the "HOLDING COMPANY") and
the parent company for Xxxxxxxx Xxxxxxxx Bank, a Massachusetts chartered savings
bank, with its executive offices in Franklin, Massachusetts (the "BANK") (the
Bank and the Holding Company shall be hereinafter collectively referred to as
the "EMPLOYERS"), and [_________] of [_________], Massachusetts (the
"EXECUTIVE").
1. PURPOSE. In order to allow the Executive to consider the prospect of a
Change in Control (as defined in Section 2) in an objective manner, and in
consideration of the services rendered and to be rendered by the Executive to
the Employers and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the Employers, the Employers are
willing to provide, subject to the terms of this Agreement, certain severance
benefits to protect the Executive from the consequences of a Terminating Event
(as defined in Section 3) occurring subsequent to a Change in Control.
2. CHANGE IN CONTROL. A "Change in Control" shall be deemed to have
occurred in any of the following events:
2.1 If there has occurred a change in control which the Holding
Company would be required to report in response to Item 5.01 of Form 8-K
promulgated under the Securities Exchange Act of 1934, as amended (the "1934
Act"), or, if such regulation is no longer in effect, any regulations
promulgated by the Securities and Exchange Commission pursuant to the 1934 Act
which are intended to serve similar purposes;
2.2 When any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the 0000 Xxx) becomes a "beneficial owner" (as such term is defined
in Rule 13d-3 promulgated under the 1934 Act), directly or indirectly, of
securities of the Holding Company or the Bank representing twenty-five percent
(25%) or more of the total number of votes that may be cast for the election of
directors of the Holding Company or the Bank, as the case may be;
2.3 During any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of the Holding
Company, and any new director (other than a director designated by a person who
has entered into an agreement with the Holding Company to effect a transaction
described in Section 2.2, 2.4, or 2.5 of this Agreement) whose election by the
Board or nomination for election by the Holding Company's stockholders was
approved by a vote of at least two-thirds (2/3) 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 of the Board of Directors of the
Holding Company;
2.4 The stockholders of the Holding Company approve a merger, share
exchange or consolidation ("merger or consolidation") of the Holding Company
with any other corporation, other than (a) a merger or consolidation which would
result in the voting securities of the Holding 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 70% of the combined voting power of the voting
securities of the Holding Company or such surviving entity outstanding
immediately after such merger or consolidation or (b) a merger or consolidation
effected to implement a recapitalization of the Holding Company (or similar
transaction) in which no "person" (as hereinabove defined) acquires more than
30% of the combined voting power of the Holding Company's then outstanding
securities; or
2.5 The stockholders of the Holding Company or the Bank approve a
plan of complete liquidation of the Holding Company or the Bank or an agreement
for the sale or disposition by the Holding Company or the Bank of all or
substantially all of the Holding Company's or the Bank's assets.
3. TERMINATING EVENT. A "Terminating Event" shall mean
3.1 Termination by either of the Employers of the employment of the
Executive with either of the Employers for any reason other than (i) death, (ii)
deliberate dishonesty or gross misconduct of the Executive with respect to the
Holding Company or the Bank or any subsidiary or affiliate thereof, or (iii)
conviction of the Executive for the commission of a felony; or
3.2 Resignation of the Executive from the employ of either of the
Employers, while the Executive is not receiving payments or benefits from either
of the Employers by reason of the Executive's disability, subsequent to the
occurrence of any of the following events:
(a) a reduction in the Executive's annual base salary as in
effect on the date hereof or as the same may be increased from time to
time; or
(b) the relocation of the Employers' offices at which the
Executive is principally employed to a location that (i) is more than 25
miles away from the offices at which the Executive is principally employed
immediately prior to the date of the Change in Control and (ii) increases
the Executive's commute by more than 20 miles; or
(c) the failure by either Employer to pay to the Executive any
portion of his current compensation or to pay to the Executive any portion
of an installment of deferred compensation under any deferred compensation
program of either Employer within seven (7) days of the date such
compensation is due; or
(d) the failure by either Employer to continue the Executive's
participation in any material compensation, incentive, bonus or benefit
plan (or in a successor plan) in which the Executive participates
immediately prior to the Change in Control or the failure of a successor
in interest to make available its benefits plans to the Executive on a
basis that is not substantially less favorable than the successor
generally affords to its other employees holding similar positions; or
(e) the failure of either Employer to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement.
4. SEVERANCE PAYMENT. In the event a Terminating Event occurs within two
years after a Change in Control, the Holding Company shall pay to the Executive
an amount equal to (x) [ONE,
2
TWO OR THREE] times the sum of: (i) the Executive's current base salary, plus
(ii) the highest annual bonus paid during the most recent three calendar years,
payable in one lump-sum payment on the date of termination.
5. BENEFIT CONTINUATION. In the event a Terminating Event occurs within
two years after a Change in Control, the Holding Company shall continue to pay
to the Executive the disability and medical benefits existing on the date of the
Terminating Event at the level in effect on, and at the same out-of-pocket cost
to the Executive as of, the date of such Terminating Event, for a period of
[ONE, TWO OR THREE] years. In the event that the Employers are unable to provide
the benefits set forth in this Section 5 due to the change in Executive's status
to that of a non-employee, the Employers shall instead pay to the Executive a
lump sum amount equal to the value of the benefits required to be provided by
this Section 5.
6. LIMITATION ON BENEFITS. It is the intention of the Executive and of the
Employers that no payments by the Employers to or for the benefit of the
Executive under this Agreement or any other agreement or plan pursuant to which
he is entitled to receive payments or benefits shall be non-deductible to the
Employers by reason of the operation of Section 280G of the Internal Revenue
Code of 1986, as amended ("Code") relating to parachute payments. Accordingly,
and notwithstanding any other provision of this Agreement or any such agreement
or plan, if by reason of the operation of said Section 280G, any such payments
exceed the amount which can be deducted by the Employers, such payments shall be
reduced to the maximum amount which can be deducted by the Employers. To the
extent that payments exceeding such maximum deductible amount have been made to
or for the benefit of the Executive, such excess payments shall be refunded to
the Employers with interest thereon at the applicable Federal Rate determined
under Section 1274(d) of the Code, compounded annually, or at such other rate as
may be required in order that no such payments shall be non-deductible to the
Employers by reason of the operation of said Section 280G. To the extent that
there is more than one method of reducing the payments to bring them within the
limitations of said Section 280G, the Executive shall determine which method
shall be followed, provided that if the Executive fails to make such
determination within forty-five days after the Employers have sent him written
notice of the need for such reduction, the Employers may determine the method of
such reduction in their sole discretion.
6.1 If any dispute between the Employers and the Executive as to any
of the amounts to be determined under this Section 6 or the method of
calculating such amounts cannot be resolved by the Employers and the Executive,
either party after giving three days written notice to the other, may refer the
dispute to a partner in a Massachusetts office of a firm of independent
certified public accountants selected jointly by the Employers and the
Executive. The determination of such partner as to the amounts to be determined
under Section 6.1 and the method of calculating such amounts shall be final and
binding on both the Employers and the Executive. The Employers shall bear the
costs of any such determination.
6.2 The Executive confirms that he is aware of the fact that the
Federal Deposit Insurance Corporation has the power to preclude the Bank from
making payments to the Executive under this Agreement under certain
circumstances. The Executive agrees that the Bank shall not be deemed to be in
breach of this Agreement if it is precluded from making a payment otherwise
payable hereunder by reason of regulatory requirements binding on the Bank.
3
7. EMPLOYMENT STATUS. This Agreement is not an agreement for the
employment of the Executive and shall confer no rights on the Executive except
as herein expressly provided.
8. TERM. This Agreement shall take effect as of the date hereof and shall
terminate upon the earlier of (a) the resignation or termination of the
Executive for any reason prior to a Change in Control, or (b) the resignation of
the Executive after a Change in Control for any reason other than the occurrence
of any of the events enumerated in Section 3.2 of this Agreement.
9. WITHHOLDING. All payments made by the Holding Company under this
Agreement shall be net of any tax or other amounts required to be withheld by
the Holding Company under applicable law.
10. ARBITRATION OF DISPUTES. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled by arbitration
in accordance with the laws of The Commonwealth of Massachusetts by three
arbitrators, one of whom shall be appointed by the Holding Company, one by the
Executive and the third by the first two arbitrators. If the first two
arbitrators cannot agree on the appointment of a third arbitrator, then the
third arbitrator shall be appointed by the American Arbitration Association in
the City of Boston. Such arbitration shall be conducted in the City of Boston in
accordance with the rules of the American Arbitration Association, except with
respect to the selection of arbitrators which shall be as provided in this
Section 10. Judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. In the event that it shall be
necessary or desirable for the Executive to retain legal counsel and/or incur
other costs and expenses in connection with the enforcement of any or all of the
Executive's rights under this Agreement, the Holding Company shall pay (or the
Executive shall be entitled to recover from the Holding Company, as the case may
be) the Executive's reasonable attorneys' fees and other reasonable costs and
expenses in connection with the enforcement of said rights, if the Executive
prevails on the merits as determined by the arbitrators.
11. ASSIGNMENT; SUCCESSORS AND ASSIGNS, ETC. Assignment; Successors and
Assigns, etc.
11.2 This Agreement is personal to the Executive and, without the
prior written consent of the Holding Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
11.3 This Agreement shall inure to the benefit of and be binding
upon the Holding Company and its successors and permitted assigns.
11.4 The Holding Company may not assign this Agreement or any
interest herein without the prior written consent of the Executive and without
such consent any attempted transfer or assignment shall be null and of no
effect; provided, however, that the Holding Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Holding Company
expressly to assume and to agree to perform this Agreement in the same manner
and to the same extent that the Holding Company would have been required to
perform it if no such succession had taken place. As used in this Agreement,
"the Holding Company" shall mean both
4
the Holding Company as defined above and any such successor that assumes and
agrees to perform this Agreement, by operation of law or otherwise.
12. ENFORCEABILITY. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
13. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
14. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by registered or certified mail, postage prepaid, to the
Executive at the last address the Executive has filed in writing with the
Holding Company or, in the case of the Holding Company, at its main office,
attention of the Board of Directors.
15. ELECTION OF REMEDIES. An election by the Executive to resign after a
Change in Control under the provisions of this Agreement shall not constitute a
breach by the Executive of any employment agreement the Executive may have with
either Employer and shall not be deemed a voluntary termination of employment by
the Executive for the purpose of interpreting the provisions of any of the
Employers' benefit plans, programs or policies. Nothing in this Agreement shall
be construed to limit the rights of the Executive under any employment agreement
he may then have with either Employer, provided, however, that if there is a
Terminating Event under Section 3 hereof, the Executive may elect either to
receive the severance and other benefits provided under Section 4 and Section 5
or such termination benefits as he may have under any such employment agreement,
but may not elect to receive both.
16. AMENDMENT. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized representative of
the Holding Company.
17. GOVERNING LAW. This is a Massachusetts contract and shall be construed
under and be governed in all respects by the laws of The Commonwealth of
Massachusetts.
18. INTERPRETATION. References to Sections include subsections, which are
part of the related Section (e.g., a section numbered "Section 5.5" would be
part of "Section 5" and references to "Section 5" would also refer to material
contained in the subsection described as "Section 5.5").
19. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed
in two or more counterparts, all of which shall be considered one and the same
agreement and shall
5
become effective when one or more counterparts have been signed by each party
and delivered to the other party, it being understood that all parties need not
sign the same counterpart. This Agreement may be executed by facsimile
signatures.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Holding Company, by its duly authorized officer, and by the
Executive, as of the date first above written.
ATTEST: XXXXXXXX XXXXXXXX BANCORP, INC.
____________________________________ By: ___________________________________
Title: ________________________________
WITNESS:
____________________________________ _______________________________________
EXECUTIVE
The undersigned hereby
unconditionally guarantees the
obligations of the Holding Company
under the foregoing Agreement.
XXXXXXXX XXXXXXXX BANK
By: ________________________________
Title: _____________________________
6
