EXHIBIT 10.2 October 6, 2003
Xxxxxx X. Xxxxxx, III
Xxx XxxxxXxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Dear Ed:
In connection with the anticipated merger (the "Merger") of
FirstFed America Bancorp, Inc. (the "Company") with and into Xxxxxxx Financial
Corporation (the "Parent") as contemplated by the Agreement and Plan of Merger,
dated as of October 6, 2003, by and between the Parent and the Company (the
"Merger Agreement"), which is entered into as of today, the Company, Company
Bank, the Parent and you hereby enter into this agreement (this "Agreement").
Capitalized terms used but not otherwise defined in this Agreement shall have
the meaning set forth in the Merger Agreement.
The parties hereto agree and acknowledge that paragraphs 3(a),
3(b), 7 and 8 of this Agreement shall become immediately effective upon the
execution of this Agreement; all other provisions of this Agreement shall become
effective only as of the Effective Time (as defined in the Merger Agreement). In
the event that the Effective Time does not occur for any reason, this Agreement
shall be deemed null and void ab initio and of no force and effect, and the
Employment Agreement by and among you, the Company Bank and the Company dated as
of July 31, 1997 (the "Company Bank Agreement") and the Employment Agreement
between you and the Company dated as of January 31, 1997, amended and restated
in its entirety, effective as of April 29, 1999 (the "Company Agreement," and
together with the "Company Bank Agreement," the "Prior Agreements") shall be
reinstated effective immediately.
1. Employment Period. The Parent and the Company and their
subsidiaries shall employ you, and you shall serve the Parent, on the terms and
conditions set forth in this Agreement, for a period (the "Employment Period")
commencing on the date (the "Effective Date") on which occurs the Effective Time
and ending on the six month anniversary following the Effective Date, unless
sooner terminated in accordance with this Agreement.
2. Position/Duties. During the Employment Period, you shall serve
as President and Chief Operating Officer of the Parent's Rhode Island and
Massachusetts franchise with such duties and responsibilities as are customarily
assigned to such position(s), and such other duties and responsibilities not
inconsistent therewith as may from time to time be assigned to you by the
Parent. You shall devote your full working time, energy and attention to the
business of the Parent and its subsidiaries during the Employment Period. This
Agreement shall not, however, preclude you from investing or supervising the
investment of your personal assets (including, without limitation,
financial investments) in such form and manner as will not conflict with your
duties and responsibilities under this Agreement or the Parent's Code of Ethics.
Other than as expressly provided herein you will not, during the Employment
Period, without the prior written consent of the Chief Executive Officer of the
Parent, engage in any other business activity other than those with which you
were associated immediately before the Effective Time, which are set forth on
Exhibit A. The primary location of your employment during the Employment Period
shall be the primary location of your employment immediately before the
Effective Time.
3. Compensation and Benefits.
(a) Deferred Compensation Payment. Prior to December 1, 2003, the
Company hereby agrees to pay to you in satisfaction of your expected accrued and
vested account balances as of the Effective Time under each of the First Federal
Savings Bank of America Supplemental Executive Retirement Plan, the First
Federal Savings Bank of America Incentive Award and Salary Deferral Plan,
Amended and Restated Deferred Compensation Plan for Executives of First Federal
Savings Bank of America and each other non-qualified plan of the Company and its
affiliates (the "Deferred Compensation Plans"), in the amount set forth on
Exhibit A hereto. You hereby agree and acknowledge that, after such payment is
made to you, the Parent, the Company Bank, the Company and their affiliates
shall have no further payment obligations to you or for your benefit whatsoever
under the Deferred Compensation Plans and your participation in such plans shall
cease immediately. For the avoidance of doubt, and notwithstanding anything
herein to the contrary, the payment described in this paragraph shall not be
taken into account in computing any benefits under any plan, program or
arrangement of the Parent, the Company Bank, the Company or their affiliates.
(b) Options. Prior to December 1, 2003, you hereby agree to
exercise any and all vested options for the purchase of Company stock
("Options") that you hold as of the date hereof such that all income from such
exercise shall be included in your gross income for 2003. In the event that you
sell the shares subject to the Options that you exercise pursuant to the
preceding sentence prior to the Effective Time on the open market and the amount
per share that you realize upon such sale is less than the Cash Consideration,
on the Effective Date, the Company shall pay you an additional amount per share
equal to the excess, if any, of the Cash Consideration over the amount realized
per share for such shares on the date of disposition of such shares. Prior to
December 1, 2003, in lieu of the Option grant contemplated by Section 10 of the
Company's 1998 Stock Option Plan, the Company shall pay to you an amount in cash
in the amount set forth on Exhibit A representing the amount of the cash payment
that you would be entitled to receive under Section 2.3 of the Merger Agreement
for any options that would be granted to you under Section 10 of the Company's
1998 Stock Option Plan. You hereby agree and acknowledge that, after such
payment is made to you, the Parent, the Company Bank, the Company and their
affiliates shall have no further obligations to grant Options or make any
payments with respect to any Options to you or for your benefit whatsoever under
Section 10 of the Company's 1998 Stock Option Plan. For the avoidance of doubt,
and notwithstanding anything herein to the contrary, the payment set
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forth in the preceding sentence shall not be taken into account in computing any
benefits under any plan, program or arrangement of the Parent, the Company Bank,
the Company or their affiliates.
(c) Effective Date Payment/Representation. On the Effective Date,
the Parent shall pay you a lump sum payment in cash in the amount set forth on
Exhibit A (the "Effective Date Payment"). For the avoidance of doubt, and
notwithstanding anything herein to the contrary, the Effective Date Payment
shall not be taken into account in computing any benefits under any plan,
program or arrangement of the Parent, the Company Bank, the Company or their
affiliates. You and the Company represent and warrant that all amounts set forth
on Exhibit A and the back up data provided to the Parent prior to the date
hereof for such amounts are true and correct and that all amounts noted as being
estimates are good faith estimates.
(d) Base Salary. During the Employment Period, you shall receive
an annualized base salary ("Annual Base Salary") at a rate of not less than the
amount set forth on Exhibit A. The Annual Base Salary shall be payable in
accordance with the Parent's regular payroll practice for its senior executives,
as in effect from time to time.
(e) Annual Bonus. During the Employment Period, you shall be
eligible to receive an annual bonus (the "Annual Bonus") of up to 50% of your
Annual Base Salary, subject to the satisfaction of performance conditions as
established by the Parent. The Annual Bonus shall be prorated for any partial
years of service with the Parent and its subsidiaries. You shall be eligible for
no other incentive compensation during the Employment Period.
(f) Benefits. During the Employment Period, you shall be eligible
to participate in such benefit plans, including without limitation health and
welfare benefit plans, as are from time to time made generally available to
similarly situated executives of the Parent, the Company and their respective
subsidiaries, in accordance with the terms thereof. During the Employment
Period, you shall continue to receive the perquisites set forth on Exhibit A to
the extent that such perquisites were provided to you immediately prior to the
Effective Time. Notwithstanding anything in this Agreement or otherwise
(including under the First Federal Savings Bank of America Employee Severance
Compensation Plan or any other severance plan, program, practice or arrangement
of the Parent, the Company Bank, the Company or any of their respective
affiliates (the "Severance Plans")), in no event shall you be eligible to
participate in or receive severance benefits under the Severance Plans.
4. Termination of Employment.
(a) Cause. The Parent may terminate your employment with
or without Cause. For purposes of this Agreement, "Cause" shall mean: your
personal dishonesty, willful misconduct, any breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule, regulation (other than traffic violations or similar offense),
final cease and desist order or material
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breach of any provision of this Agreement. Notwithstanding the foregoing, your
employment shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to you a notice of termination which shall
include a copy of a resolution duly adopted by the affirmative vote of not less
than three-fourths of the members of the Board of Directors of the Parent (the
"Board") called and held for that purpose (after reasonable notice to you and an
opportunity for you, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, you were guilty of conduct
justifying the termination for Cause and specifying the particulars thereof in
detail.
(b) Death/Disability. Your employment shall terminate
automatically upon your death. The Parent shall be entitled to terminate your
employment because of your Disability during the Employment Period. "Disability"
means that you are entitled to receive either long-term disability benefits
under the Parent's group long-term disability plan or Social Security disability
benefits. A termination of your employment by the Parent for Disability shall be
communicated to you by written notice, and shall be effective on the 30th day
after receipt of such notice by you (the "Disability Effective Date"), unless
you return to full-time performance of your duties before the Disability
Effective Date.
(c) Good Reason. You may terminate your employment with
or without Good Reason. For purposes of this Agreement, "Good Reason" shall
mean, the occurrence of any of the following without your prior written consent:
(i) a material change in your function, duties or responsibilities, which change
would cause your position to become one of lesser responsibility, importance or
scope from the position and attributes thereof described in paragraph 2, (ii) a
relocation of your principal place of employment by more than 25 miles from the
location set forth in paragraph 2, or (iii) a material breach of this Agreement
by the Parent. Upon the occurrence of any event described in clauses (i), (ii)
or (iii) above, you shall have the right to elect to resign upon not less than
thirty (30) days prior written notice given within three full months after the
event giving rise to such right to elect.
(d) Date of Termination. The "Date of Termination" means
the date of your death, the Disability Effective Date, or the date on which the
termination of your employment by the Parent with or without Cause or your
resignation with or without Good Reason is effective, as the case may be.
5. Effects of Termination of Employment.
(a) By the Company Without Cause/Resignation for Good
Reason. In the event of (i) the termination of your employment by the Parent
without Cause (other than for death or Disability) during the Employment Period
or (ii) your resignation for Good Reason during the Employment Period, and
subject to execution and non-revocation of the release agreement referred to
below and your compliance with the restrictive covenants set forth in this
Agreement, you shall be entitled to (1) continuation of your Annual Base Salary
from the Date of Termination through the six month
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anniversary following the Effective Date that has not yet been paid, and (2) the
Other Benefits. For purposes of this Agreement, "Other Benefits" shall mean all
vested benefits and all other benefits that you are otherwise entitled to
receive upon or subsequent to the Date of Termination under any plan, policy,
practice or program of or any other contract or agreement with the Parent, the
Company or any of their affiliates, to the extent payment of such Other Benefits
is permitted by law; provided, however, that you will not be eligible to receive
any severance benefits other than set forth in this Agreement. In order to be
eligible to receive the payments and benefits set forth in this Section 5(a),
you shall execute and not revoke a release agreement in a form provided to you
by the Parent and excluding claims to payments due to you under this Agreement.
Except as specifically provided herein, no other compensation or benefits will
be due or payable to you in connection with such termination.
(b) Death/Disability. In the event of the termination of
your employment by reason of your death or Disability, you shall be entitled to
the Other Benefits. Except as specifically provided herein, no other
compensation contemplated by this Agreement will be due or payable to you in
connection with such termination.
(c) Termination for Cause/Resignation. In the event of
the termination of your employment by the Parent for Cause or your resignation
without Good Reason during the Employment Period, you shall be entitled to the
Other Benefits. Except as specifically provided herein, no other compensation
contemplated by this Agreement will be due or payable to you in connection with
such termination.
6. Restrictive Covenants and Confidentiality. In return for a
lump sum cash payment on the Effective Date in the amount set forth on Exhibit
A, you hereby agree to abide by the restrictive covenants set forth in this
paragraph 6.
(a) Noncompetition. During the six-month period following
the Effective Date (the "Restricted Period"), you shall not, without the prior
written consent of the Chief Executive Officer of the Parent engage in or become
associated with a Competitive Activity. For purposes of this paragraph 6(a): (i)
a "Competitive Activity" means any business or other endeavor, in any county in
Connecticut, Rhode Island, Massachusetts and New York, that is engaged in the
banking business, whether through a bank, a savings and loan, a savings bank, a
credit union, a mortgage company, bank holding company, savings and loan holding
company or other depository institution holding company in such jurisdiction as
of the Effective Date or any time thereafter; and (ii) you shall be considered
to have become "associated with a Competitive Activity" if you become directly
or indirectly involved as an owner, principal, employee, officer, director,
independent contractor, representative, stockholder, financial backer, agent,
partner, advisor, lender, or in any other individual or representative capacity
with any individual, partnership, corporation or other organization that is
engaged in a Competitive Activity. Notwithstanding the foregoing, you may make
and retain investments during the Restricted Period in less than one percent
(1%) of the equity of any entity engaged in a Competitive Activity, if such
equity is listed on a national securities exchange or regularly traded in an
over-the-counter market.
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(b) Nonsolicitation of Employees/Clients. You agree that
you shall not, at any time during the Restricted Period, without the prior
written consent of the Parent, directly or indirectly employ, or solicit the
employment of (whether as an employee, officer, director, agent, consultant or
independent contractor) any person who was or is at any time during the previous
twelve (12) months an employee, representative, officer or director of the
Parent, the Company or any of their respective affiliated companies (except for
such employment by the Parent, the Company or any of their respective affiliated
companies). You agree that you shall not, at any time during the Restricted
Period, directly or indirectly, attempt in any manner to persuade any client or
customer of the Parent, the Company or their respective affiliated companies to
cease to do business or to reduce the amount of business which any such client
or customer has customarily done or contemplates doing with the Parent, the
Company or their respective affiliated companies, whether or not the
relationship between the Parent, the Company or such affiliated company and such
client or customer was originally established, in whole or in part, through your
efforts, or to solicit business of any such client or customer of the Parent,
the Company or their respective affiliated companies, unless such solicitations
is rendered on the behalf of, and in furtherance of the business of, the Parent,
the Company or any such affiliated companies.
(c) Confidentiality. You shall hold in a fiduciary
capacity for the benefit of the Parent, the Company and their respective
affiliated companies all secret or confidential information, knowledge or data
relating to the Parent, the Company or any of their affiliated companies and
their respective businesses (including, without limitation, any proprietary and
not publicly available information concerning any processes, methods, trade
secrets, research, secret data, costs or names of users or purchasers of their
respective products or services, business methods, operating procedures or
programs or methods of promotion and sale) that you obtain or obtained during
your employment by the Parent, the Company or any of their respective affiliated
companies and that is not public knowledge (other than as a result of your
violation of this paragraph) ("Confidential Information"). For the purposes of
this paragraph 6(c), information shall not be deemed to be publicly available
merely because it is embraced by general disclosures or because individual
features or combinations thereof are publicly available. You shall not
communicate, divulge or disseminate Confidential Information at any time during
or after your employment with the Parent, the Company or any of their respective
affiliated companies, except with the prior written consent of the Parent, or as
otherwise required by law or legal process. All records, files, memoranda,
reports, customer lists, drawings, plans, documents and the like that you use,
prepare or come into contact with during the course of your employment shall
remain the sole property of the Parent, the Company or one or more of their
respective affiliated companies, as applicable, and shall be turned over to the
Parent, the Company or such affiliated company, as applicable, upon termination
of your employment. Notwithstanding the foregoing provisions, if you are
required to disclose any such confidential or proprietary information pursuant
to applicable law or a subpoena or court order, you shall promptly notify the
Parent in writing of any such requirement so that the Parent or the appropriate
affiliate may seek an appropriate protective order or other appropriate remedy
or waive compliance with the
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provisions hereof. You shall reasonably cooperate with the Parent to obtain such
a protective order or other remedy. If such order or other remedy is not
obtained prior to the time that you are required to make the disclosure, or the
Parent waives compliance with the provisions hereof, you shall disclose only
that portion of the confidential or proprietary information which you are
advised by counsel that you are legally required to so disclose. Notwithstanding
anything to the contrary herein, this Agreement shall permit the disclosure of
the tax treatment and tax structure, each as defined in Treasury Regulations
Section 1.6011-4, of the compensatory arrangements described in this Agreement
(but no other details about the matters covered by this Agreement, including,
without limitation, the identities of the parties).
7. Termination of the Prior Agreements; Agreement to Remain
Employed Through Effective Time. Except as provided in paragraph 8 of this
Agreement, you hereby agree that, in consideration for entering into this
Agreement, effective as of the date hereof, the Prior Agreements shall be null
and void and no person or entity shall be obligated to pay to you or any person
any amounts in respect of the Prior Agreements. Further, in consideration of the
benefits conferred upon you and the Company pursuant to this Agreement, you
hereby agree not to terminate your employment with the Company or any of its
subsidiaries prior to the Effective Time, and, prior to the Effective Time, the
Company agrees not to terminate your employment with the Company or its
subsidiaries without the prior written consent of the Parent.
8. Withholding and Deductions. The Company and the Parent will
withhold and deposit all federal, state and local income and employment taxes
that are owed with respect to all amounts paid or benefits provided to or for
you by the Company, the Parent or any affiliate pursuant to this Agreement. You,
the Company and the Parent agree that none of the payments and benefits payable
or provided to you or for your benefit in connection with the Merger are
expected to constitute "excess parachute payment" within the meaning of Section
280G of the Code. In the event that any amounts payable or benefits provided
hereunder become subject to the excise tax under Section 4999 of the Internal
Revenue Code of 1986, as amended, such amounts and benefits shall be treated in
the manner set forth under Section 6 of the Company Agreement, the provisions of
which the Parent expressly assumes under and in accordance with the terms of
this Agreement. You hereby agree to report any amounts paid or benefits provided
under this Agreement for purposes of Federal, state and local income, employment
and excise taxes in a manner consistent with the manner in which the Parent
reports any such amounts or benefits for purposes of Federal, state and local
income, employment and excise taxes and that you shall cooperate with the Parent
in good faith in connection with any valuation of the restrictions and
obligations under this Agreement.
9. Successors. This Agreement is personal to you and without the
prior written consent of the Parent shall not be assignable by you otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by your legal representatives. This
Agreement shall inure to the benefit of and be binding upon the Company, the
Parent and their successors and assigns.
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10. Injunctive Relief. You acknowledge that the services rendered
by you to the Parent and its affiliates are of a special, unique and
extraordinary character and, in connection with such services, you had access to
confidential information vital to the businesses of the Parent and its
affiliates. By reason of this, you consent and agree that if you violate any of
the provisions of paragraph 6 of this Agreement, the Parent, the Company and its
affiliates would sustain irreparable harm and, therefore, in addition to any
other remedies which the Parent and the Company may have under this Agreement or
otherwise, the Parent shall be entitled to an injunction restraining you from
committing or continuing any such violation of this Agreement.
11. Severability/Reform. The restrictions and obligations imposed
by paragraph 6 are separate and severable, and it is the intent of you and the
Parent that if any restriction or obligation imposed by paragraph 6 is deemed by
a court of competent jurisdiction to be void for any reason whatsoever, the
remaining provisions, restrictions and obligations shall remain valid and
binding upon you. In the event that any of the provisions of paragraph 6 are
determined by a court of competent jurisdiction to be unenforceable because
unreasonable either as to length of time or area to which said restriction
applies, it is the intent of you and the Parent that such court reduce and
reform the provisions thereof so as to apply the greatest limitations considered
enforceable by the court. If any of the provisions of paragraph 6 are determined
to be wholly or partially unenforceable in any jurisdiction, such determination
shall not be a bar to or in any way diminish the Parent's right to enforce any
such covenant in any other jurisdiction.
12. Waiver. Failure of the Parent to demand strict compliance with
any of the terms, covenants or conditions of this Agreement shall not be deemed
a waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any such term, covenant or condition on any occasion or
multiple occasions be deemed a waiver or relinquishment of such term, covenant
or condition.
13. Governing Law and Jurisdiction. The Agreement is governed by
and construed under the laws of the State of Delaware, without regard to
conflict of laws rules. You, the Company and the Parent (a) hereby consent to
submit to the exclusive personal jurisdiction of any Federal court located in
the State of Connecticut or any court of the State of Connecticut in the event
any dispute arises out of this Agreement or any of the transactions contemplated
by this Agreement, and (b) hereby waive any right to challenge jurisdiction or
venue in such courts with regard to any suit, action, or proceeding under or in
connection with the Agreement. Each party to this Agreement also hereby waives
any right to trial by jury in connection with any suit, action, or proceeding
under or in connection with this Agreement.
14. Entire and Final Agreement. This Agreement shall supersede any
and all prior oral or written representations, understandings and agreements of
the parties with respect to their employment relationship (including, but not
limited to all correspondence, memoranda and term sheets and the Prior
Agreements), and it contains the entire agreement of the parties with respect to
those matters. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been
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made by either party which are not set forth expressly in this Agreement. Once
signed by the parties hereto, no provision of this Agreement may be modified or
amended unless agreed to in a writing, signed by you and a duly authorized
officer of the Company and the Parent.
15. Assignment. Neither this Agreement nor any of the rights,
obligations or interests arising hereunder may be assigned by you. Neither this
Agreement nor any of the rights, obligations or interests arising hereunder may
be assigned by the Company or the Parent without your prior written consent, to
a person or entity other than an affiliate or parent entity of the Company or
the Parent, or their successors or assigns; provided, however, that, in the
event of the merger, consolidation, transfer, or sale of all or substantially
all of the assets of the Company or the Parent with or to any other individual
or entity, this Agreement shall, subject to the provisions hereof, be binding
upon and inure to the benefit of such successor and such successor shall
discharge and perform all the promises, covenants, duties, and obligations of
the Company or the Parent hereunder.
16. Section Headings. The section headings contained in this
Agreement are inserted for purposes of convenience only and shall not affect the
meaning or interpretation of this Agreement.
17. Notices. All notices required by this Agreement shall be sent
in writing and delivered by one party to the other by overnight express mail to
the following persons and addresses:
If to the Company:
FirstFed America Bancorp, Inc.
Xxx XxxxxXxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copy to the Parent.
If to the Parent:
Xxxxxxx Financial Corporation
Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Executive Vice President, General Counsel
and Secretary
Telecopy No.: (000) 000-0000
If to you:
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At the most recent address on file at the Company.
18. Execution in Counterparts. This Agreement may be executed by
the parties hereto in counterparts, and each of which shall be considered an
original for all purposes.
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If the foregoing is satisfactory, please so indicate by
signing and returning to the Company and the Parent and the enclosed copy of
this letter whereupon this will constitute our agreement on the subject.
XXXXXXX FINANCIAL CORPORATION
By:____________________________
Name: Xxxxx X. Xxxxx, Chairman & Chief
Executive Officer
Date:________________
FIRSTFED AMERICA BANCORP, INC.
By:____________________________
Name:
Date:________________
FIRST FEDERAL SAVINGS BANK OF AMERICA
By:____________________________
Name:
Date:________________
ACCEPTED AND AGREED TO:
______________________
Xxxxxx X. Xxxxxx, III
Date:______________
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EXHIBIT A
Pre-Effective Time Business Associations: Member, Board of Trustees - St.
Anselm College,Manchester, NH
Member, Board of Trustees - Xxxxx
Xxxxxxxx Medical Center,
Providence, RI
Member, Board of Directors - United
Way of Fall River, MA
Member, Board of Directors -
DentaQuest Ventures, Inc., Boston,
MA
Member, Board of Directors - Rhode
Island Country Club, Barrington, RI
Corporate Member, Board of
Directors - USS Battleship
Massachusetts
Deferred Compensation Account Balance $ 670,680
(paragraph 3(a)):
Option Payment (paragraph 3(b)): $ 582,816
Effective Date Payment (paragraph 3(c)): $ 2,266,979
Annualized Base Salary (paragraph 3(d)): $ 300,000
Restrictive Covenant Payment (paragraph $ 300,000
6):
Perquisites: Use of same office space, equipment
and staff at XXX XXXXXXXX XXXX,
Xxxxxxx, XX.
Company-provided cell and laptop
computer.
Continued membership and
participation on the same terms and
conditions in effect prior to the
Effective Time (including
attendance at conventions,
conferences and other activities)
in American Community Bankers,
Massachusetts Bankers, Mortgage
Bankers and Federal Home Loan Bank
System.
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