EXHIBIT 10.3
AMENDED AND RESTATED
CHANGE IN CONTROL AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is made and entered into this 11th day
of February, 1999, by and between Cape Cod Bank and Trust Company, a
Massachusetts trust company (the "Bank"), CCBT Bancorp, Inc., a Massachusetts
corporation (the "Company") (the Bank and the Company, collectively, the
"Employers") and Xxxxx X. Xxxxxx, a resident of Orleans, Massachusetts
("Employee").
WITNESSETH, the Company is the holding company for the Bank;
WHEREAS the Employers have determined that it is in the best interests of
the Employers to allow the Employee to consider the prospect of a Change in
Control (as herein defined) in an objective manner and in consideration of the
services to be rendered by the Employee 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 benefits upon the occurrence of a
Terminating Event (as herein defined) subsequent to a Change in Control.
WHEREAS the Employer and the Employee hereby amend and restate this
Agreement to reflect the reorganization of the Bank into holding company
structure, including the addition of the Company as a party to this Agreement.
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, the Employers and the Employee hereby agree as follows:
1. DEFINITIONS.
1.1 "Affiliate" means:
1.1.1 A member of a controlled group of corporations of which either
of the Employers is a member; or
1.1.2 An unincorporated trade or business which is under common
control with either of the Employers as determined in
accordance with Section 414(c) of the Internal Revenue Code of
1986, as amended (henceforth the "Code") and regulations issued
thereunder.
For purposes hereof, a "controlled group of corporations" shall mean a
controlled group of corporations as defined in Section 1563(a) of the
Code determined without regard to Section 1563(a)(4) and (e)(3)(C) of
the Code.
1.2 "Base Annual Salary" means the annualized value of the Employee's
salary, based on the most recent pay period, prior to a Change of
Control.
1.3 "Change in Duties" means:
1.3.1 A significant reduction in the nature or scope of the
Employee's authority or duties from those immediately prior to
the date on which a Change of Control occurs;
1.3.2 A reduction in the Employee's Base Annual Salary;
1.3.3 Exclusion from any incentive program from which the Employee
was previously eligible, or which other executives with
comparable duties participate in;
1.3.4 A change in location of the Employee's principal place of
employment by more than fifty (50) miles;
1.4 "Change in Control" shall be deemed to have occurred in any one of the
following events:
1.4.1 if there has occurred a change in control of either the Company
or the Bank which the Company or the Bank would be required to
report in response to Item 1 of Form 8-K promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or, if such form and the related regulations are no
longer in effect, any forms or regulations promulgated by the
Securities and Exchange Commission, pursuant to the Exchange
Act, which are intended to serve similar purposes; or
1.4.2 A Change in Control of the Company or the Bank has occurred
within the meaning of the Change in Bank Control Act, as
amended and the rules and regulations promulgated thereunder;
or
1.4.3 Without limitation such a Change in Control shall be deemed to
have occurred at such time as:
1.4.3.1 Any "person" (as the term is used in Section 13(d) and
14(d) of the Exchange Act), or group of persons acting
in concert, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act )
directly or indirectly, of any class of equity
securities of the Company representing 50% or more of
a class of equity securities except for any securities
purchased by the Bank's employee stock ownership plan
and trust; or
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1.4.3.2 Individuals who constitute the Board of the Company on
the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof,
provided that any person becoming a director
subsequent to the date hereof whose election was
approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose
nomination for election by the Company's shareholders
was approved by the same Committee serving under an
Incumbent Board, shall be, for purposes of this clause
1.4.3.2 considered as though he were a member of the
Incumbent Board; or
1.4.3.3 A plan of reorganization, merger, consolidation, sale
of all or substantially all the assets of the Company
or similar transaction occurs in which the Company is
not the resulting entity; or
1.4.3.4 A proxy statement shall be distributed soliciting
proxies from stockholders of the Company, by someone
other than the current management of the Company,
seeking stockholder approval of a plan or similar
transaction with one or more corporations as a result
of which the outstanding shares of the class of
securities then subject to such plan or transaction
are exchanged for or converted into cash or property
or securities not issued by the Company.
1.4.4 Notwithstanding the foregoing, no Change in Control shall be
deemed to occur by virtue of the Bank becoming a subsidiary of
the Company.
1.5 "Code" means the Internal Revenue Code of 1986, as from time to time
amended.
1.6 "Constructive Termination" means the voluntary termination of
employment by the Employee following a Change in Duties following a
Change of Control.
1.7 "Employment Compensation" means any salary, bonus or commissions paid
to the Employee as an employee (as defined in the Code) by any entity
other than the Employers or their successors. If the Employee is a
partner in a partnership, this definition shall include the Employee's
share of partnership income.
1.8 "Exchange Act" means the Securities Exchange Act of 1934, as from time
to time amended.
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1.9 "Termination for Cause" means the termination of the Employee's
employment with the Bank or the Company, as applicable, as a result
of:
1.9.1 The Employee's failure or refusal to perform the Employee's
duties occasioned by reason other than sickness or other
disability of the Employee, which is not cured within ten (10)
business days after written notice from the Bank or the
Company, as applicable, specifying such failure or refusal has
been delivered;
1.9.2 Commission by the Employee of any materially fraudulent,
dishonest or other act of misconduct in the performance of the
Employee's duties hereunder, other than at the specific
direction of the Board of the Bank or the Company, as
applicable; or
1.9.3 Conviction for any felony or crime involving moral turpitude.
1.10 "Voting Securities" means any securities which ordinarily possess the
power to vote in the election of directors without the happening of
any precondition or contingency.
2. TERM. Subject to the provisions for earlier termination hereinafter set
forth in Section 4 of this Agreement, the term of this Agreement shall
commence on the date hereof and end on the day preceding the second
anniversary hereof.
3. AUTOMATIC EXTENSION. Unless the Employee receives written notification
from either of the Employers of their intention not to renew this Agreement
at least twelve (12) months prior to the expiration date, plus any
extensions, the term of this Agreement shall automatically be extended by
twelve (12) months.
4. TERMINATION OF EMPLOYMENT.
4.1 Termination Prior to a Change in Control:
4.1.1 Prior to a Change in Control, the Employers may terminate the
Employee's employment under this Section of the Agreement for
any reason.
4.1.2 If the Employee's employment is terminated pursuant to this
Section 4.1, any severance policies maintained by the Bank or
the Company, as applicable, shall apply and no amounts shall be
payable pursuant to this Agreement.
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4.2 Termination following a Change in Control:
4.2.1 If, during a period of two years following a Change in Control,
the employment of the Employee is terminated by the Bamk or the
Company, as applicable, for any reason, other than Cause, or if
the Employee is subject to Constructive Termination, benefits
shall be payable under Section 5.
4.2.2 If the Employee voluntarily terminates his or her employment
following a Change in Control for any reason other than
Constructive Termination, no amount shall be paid pursuant to
this agreement.
5. BENEFIT FOLLOWING A CHANGE IN CONTROL. If a benefit is payable, pursuant
to Section 4.2.1, the Employee shall receive, in monthly installments,
payable on the first of each month, an amount equal to:
5.1 One-twelfth (1/12th) of the Employee's Base Annual Salary, less any
withholding required pursuant to the Code; reduced by
5.2 Any Employment Compensation payable to the Employee for that month,
whether received currently or deferred.
5.3 This benefit shall be payable for 24 months following the termination
of the Employee's employment with the Bank or the Company, as
applicable.
5.4 No other amounts shall be payable under this Agreement in lieu of
bonuses, perquisites or other benefits maintained by the Employers,
nor shall the Employee be considered to continue in the employ of the
Bank or the Company, as applicable, while payments are being made
pursuant to this Section 5.
5.5 Limitation on Benefits.
5.5.1 It is the intention of the Employee and of the Employers that
no payments by the Employers to or for the benefit of the
Employee 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 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 Employee,
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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 than 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 Employee shall
determine which method shall be followed, provided that if the
Employee 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.
5.5.2 If any dispute between the Employers and the Employee as to any
of the amounts to be determined under this Section 5.5.2, or
the method of calculating such amounts, cannot be resolved by
the Employers and the Employee, either the Employers or the
Employee after giving three days' written notice to the other,
may refer the dispute to a partner in the Boston office of a
firm of independent certified public accountants selected
jointly by the Employers and the Employee. The determination of
such partner as to the amount to be determined under Section
5(a) and the method of calculating such amounts shall be final
and binding on both the Employers and the Employee. The
Employers shall bear the costs of any such determination.
6. MISCELLANEOUS.
6.1 Agreement Supersedes. This Agreement supersedes all prior agreements
and understandings by and between the Employee and the Employers and
of any Affiliates of their respective directors, officers,
shareholders, employees, attorneys, agents, or representatives,
including any Severance Agreement, Employment Letter, Employment
Terms, Non-Disclosure Agreement and /or Employment Agreement, and
constitutes the entire agreement between the parties, respecting the
subject matter hereof; there are no representations, warranties or
other commitments other than those expressed herein.
6.2 Noncontravention. The Employee represents and warrants to the
Employers that the Employee is not a party to or bound by, and the
employment of the Employee by the Employers or the Employee's
disclosure of any information to the Employers or their use of such
information will not violate or breach any employment, retainer,
consulting, license, non-competition, non-disclosure, trade secrets or
other agreement between the Employee and any other person,
partnership, corporation, joint venture, association or other entity.
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6.3 Modification; Waiver. No modification or amendment of, or waiver
under, this Agreement shall be valid unless signed in writing and
signed by the Employee and the Chairman of the Board of Directors of
the Bank and the Company, pursuant to expressed authority of the Board
of each entity.
6.4 Indemnification. The Employee and the Employers and their Affiliates
each agree to indemnify and hold the other harmless from, any and all
claims, lawsuits, losses, damages, expenses, costs and liabilities,
including, without limitation, court costs and attorney's fees which a
party to this Agreement may sustain as a result of, or in connection
with, either directly or indirectly, a breach or violation of any of
the provisions of this Agreement by the other party.
6.5 Remedies. The Employee hereby agrees that if the Employee violates
any provision of this Agreement, the Employers shall be entitled, if
they, or either of them, so elect, to institute and prosecute
proceedings at law or in equity to obtain damages with respect to such
violation or to enforce the specific performance of this Agreement by
the Employee or to enjoin the Employee from engaging in any activity
in violation hereof.
6.6 Waiver. The waiver by either party to this Agreement of a breach of
any provision of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach.
6.7 Notices. Any communication which may be required under this Agreement
shall be in writing and shall be deemed to have been properly given
when delivered personally at the address set forth below for the
intended party during normal business hours, or when sent by U.S.
registered or certified mail, return receipt requested, postage
prepaid as follows:
If to the Bank or Cape Cod Bank and Trust Company
the Company: 000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
If to the Employee: Xx. Xxxxx X. Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Notices shall be given to such other addressee or address, or both, as
a particular party may from time to time request by written notice to
the other party to the Agreement. Each notice, request, demand,
approval or other communication which is sent in accordance with this
Section shall be deemed to be delivered, given and received for all
purposes of this Agreement as of two business days after the date of
deposit thereof for mailing in a duly constituted
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U.S. post office or branch thereof, one business day after deposit
with a recognized overnight courier service or upon written
confirmation of receipt of any facsimile transmission. Notice given to
a party hereto by any other method shall only be deemed to be
delivered, given and received when actually received in writing by
such party.
6.8 Binding Nature; Employment Status. This Agreement shall inure to the
benefit of and be binding upon the Employers, jointly and severally,
and the Employee. This is not an agreement for the employment of the
Employee and shall confer no rights on the Employee except as herein
expressly provided.
6.9 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of The Commonwealth of Massachusetts.
6.10 Allocation of Obligations. The Bank and the Company shall allocate
among themselves which party shall be responsible for paying the
severance payments and other benefits directed by this Agreement. The
payment by either party of such severance payments and other benefits
shall satisfy the obligations of the non-paying party under this
Agreement. Both the Bank and the Company shall be jointly liable in
the event of a failure by both parties to pay such severance payments
and other benefits.
6.11 Assignment; Prior Agreements. Neither the Employers nor the Employee
may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of
the other party, and without such consent any attempted transfer shall
be null and void and of no effect. This Agreement shall inure to the
benefit of and be binding upon the Employers and the Employee, their
respective successors, executors, administrators, heirs and permitted
assigns. In the event of the Employee's death prior to the completion
by the Employers of all payments due him under this Agreement, the
Employers shall continue such payments to the Employee's beneficiary
designated in writing to the Employers prior to his death (or to his
estate, if he fails to make such designation). This Agreement
supersedes any prior agreement covering the subject matter hereof.
6.12 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.
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6.13 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a
sealed instrument as of the day and year first above written.
CAPE COD BANK AND TRUST EMPLOYEE
COMPANY
a Massachusetts Corporation
By: /s/ Xxxx Xxxx Xxxx /s/ Xxxxx X. Xxxxxx
----------------------------- -------------------
Name: Xxxx Xxxx Xxxx Name: Xxxxx X. Xxxxxx
Title: Chairman of the
Board of Directors
CCBT BANCORP, INC.
By: /s/ Xxxx Xxxx Xxxx
-----------------------------
Name: Xxxx Xxxx Xxxx
Title: Chairman of the
Board of Directors
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