Exhibit 10.2
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is made this 17th day of July, 2007
between Xxxxx'x Ferry Trust Company, a Massachusetts trust company, with its
principal place of business in Somerset, Massachusetts, hereafter referred to
as the Employer, or the Bank, and Xxxxxx X. Xxxxxxx of Westport, Massachusetts,
Senior Vice-President of the Bank, hereafter referred to as the Employee.
Xxxxxx X. Xxxxxxx has been employed by the Bank for a number of years.
During this time, he has performed his duties ably and well, to the
satisfaction and substantial benefit of the Bank. As a result, the Bank wishes
to provide additional incentive to retain the services of Xxxxxx Xxxxxxx until
his retirement.
THEREFORE, in consideration of these premises and the mutual promises and
obligation set forth hereafter, Xxxxxx Xxxxxxx as Employee and the Bank as
Employer agree as follows:
1. The Bank agrees that, if Employee remains continuously employed by the
Bank and/or its subsidiary Bank until his retirement, in such offices and
capacities as he may be elected to by the Board of Directors of either entity
at such compensation as may be mutually agreed upon, the Bank will pay and the
employee shall be entitled to receive additional compensation in the amount of
$1,500 per month for one hundred twenty (120) months commencing on the first
day of the first month following his retirement.
2. (a) The Bank agrees that the Employee may retire from full-time employment
upon the first day of the month immediately following his 62nd birthday, or at
any time prior thereto after completing fifteen (15) years continuous employment
with the Bank if he becomes permanently and totally disabled as defined in
paragraph (b) or at anytime following his 62nd birthday, but not later than the
first day of February following his 70th birthday, hereinafter called the
Retirement Date.
(b) Employee shall be deemed to have become permanently and totally
disabled if and when the Board of Directors of the Bank determines, on the
basis of medical or other evidence satisfactory to it, that the Employee
qualifies as disabled under the Social Security Act (42 U.S.C. Section 1382) as
amended for the purposes of supplemental security income.
3. The Bank agrees that, in the event of the death of the Employee after
completing fifteen (15) years continuous employment with the Bank and prior to
the Retirement Date while employed by the Bank, it will pay to his surviving
spouse, if any, or, if none, in equal shares to his children then living and
deceased children leaving issue then living by right of representation, or to
such other persons as he may have designated, or if none, to his estate, $1,500
per month for one hundred and twenty (120) consecutive months commencing upon
the first day of the first month following the date of death of the Employee.
If any beneficiary should die prior to the receipt of all such payments, any
remaining payments shall be made to such beneficiary's estate.
4. The Bank agrees to pay to or for the benefit of Employee from the date of
his retirement and thereafter for and during the term of his natural life such
amounts as are required for the
employer contribution to provide medical health insurance coverage comparable
to that provided immediately before his retirement, supplemental to Medicare as
it may be amended, in the form of Blue Cross/Blue Shield Medex Gold or its
substantial equivalent according to the schedule of contribution by the Bank
and the Employee as is in effect for the Bank's employees generally at the time
of Employee's retirement.
The Bank agrees to pay to or for the benefit of Employee's wife such
amounts as are required according to the schedule of contribution by the Bank
and the Employee, as amended from time to time, to provide master medical
health insurance in elect at the Bank and available to employees generally, or
its equivalent, for Employee's wife until she attains the age of 65 years or
obtains coverage under the Medicare program, whichever first occurs, and
thereafter to pay such amounts as are required under such schedule of
contribution as is in effect at that time to provide comparable medical health
insurance coverage supplemental to Medicare as it may be amended, in the form
of Blue Cross/Blue Shield Medex Gold, or its substantial equivalent, for and
during the term of her natural life.
5. Employee's rights and benefits under this Agreement are in addition to and
not a substitute for Employee's rights and benefits under the Bank's other
retirement, disability or benefit plans. Subject to the terms of the group life
insurance policy in force at the time of retirement, the Bank will continue to
include the Employee in the current group life insurance policy in force at the
time of retirement.
6. In the event that the Employee should die on or after the Retirement Date
but prior to receipt of any amount to which he is entitled hereunder pursuant
to Paragraph 1, or of all such amounts, any amounts remaining unpaid shall be
paid to such beneficiary or beneficiaries as the employee may designate by
filing with the Bank a notice in writing, but in the absence of any such
designation, such unpaid amounts shall be so paid to his surviving spouse, if
any, or, if none, in equal shares to his children then living and deceased
children leaving issue then living by right of representation, and if none,
then to his estate.
7. Whenever the Employee's beneficiaries (other than his, his spouse's or any
beneficiary's estate) shall be entitled to receive any amount hereunder, the
amount shall be paid to such beneficiaries in monthly installments: (a) over a
period of ten (10) years, in the event that no monthly installment payments
have theretofore commenced to the Employee, or (b) for the balance of the ten
(10) year period (commencing with the first such installment so received by the
Employee), on the same due dates, in the event payment of monthly installments
shall have theretofore commenced to the Employee.
8. Notwithstanding any other provision of this Agreement to the contrary, the
Employee shall have the right, with the consent of the Bank, to elect that
payment of the amounts due hereunder be made (a) over a longer period than one
hundred and twenty (120) months or (b) as a life annuity (with or without
refund); provided, however, that
(i) Any such election shall not take effect until twelve (12) months
after it is received by the Bank; and
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(ii) In the case of an election to defer a payment to be made on account
of an event other than the Employee's death, disability or Unforeseeable
Emergency (defined below), the first payment made under such election
shall not occur until at least five (5) years later than such payment
would have otherwise have been made.
"Unforeseeable Emergency" as used herein means, with respect to an
Employee, a severe financial hardship to the Employee resulting from an illness
or accident of the Employee, the Employee's spouse or a dependent (within the
meaning of Section 152(e) of the Internal Revenue Code of 1986, as amended (the
"Code)) of the Employee, loss of the Employee's property due to casualty, or
other similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Employee. The existence of an Unforeseeable
Emergency shall be determined by the Bank in accordance with Section 409A of
the Code and the regulations hereunder.
9. Notwithstanding anything in this Agreement to the contrary, if the
Corporation determines that Employee is a "key employee" within the meaning of
Section 409A of the Code and that, as a result of such status, any portion of
the payments under this Agreement would be subject to additional taxation, the
Corporation will delay paying all or any portion of such amount until the
earliest permissible date on which payments may commence without triggering
such additional taxation (with such delay not to exceed six (6) months from the
date of Employee's separation from service), with the first such payment to
include any amounts that would have been paid earlier but for the above delay.
10. As used herein the term "Value of the Account" shall mean an amount equal
to the sum of the monthly remaining payments for the remaining period of
payment discounted at the prime lending rate as published in the Wall Street
Journal on the first Monday after the event triggering the valuation.
11. Except as otherwise expressly provided in this Agreement, Employee agrees
on behalf of himself and of his executors and administrators, heirs, legatees,
distributees, and any other person or persons claiming any benefits under him
under this Agreement that this Agreement and its rights, interests, and
benefits shall not be assigned, transferred, pledged, or hypothecated in any
way by employee or any executor, administrators, heir, legatee, distributee, or
other person claiming under Employee by virtue of this Agreement, and shall not
be subject to execution, attachment, or similar process. Any attempted
assignment, transfer, pledge or hypothecation, or other disposition of this
Agreement or of such rights, interests, and benefits contrary to the above
provisions, or the levy of any attachment or similar process thereupon, shall
be null and void and without effect.
12. This Agreement does not constitute an employment agreement. Nothing
contained in this Agreement shall be construed to be a contract of employment
for any term or years, nor as conferring upon the Employee the right to
continue to be employed by the Bank in his present capacity, or in any other
capacity. It is expressly understood by the parties hereto that this Agreement
relates exclusively to additional compensation for the Employee's services,
which compensation is payable after his retirement from full-time service with
the Bank or his death, and is not intended to be an employment contract. The
benefits payable under this Agreement shall be independent of, and in addition
to, any benefits under any other employment agreement
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that may exist from time to time between the parties hereto, or any other
compensation payable by the Bank to the Employee whether as salary or
otherwise. In the event that Employee's employment is terminated for any reason
other than his death or retirement under the provision of paragraphs 2 and 3
hereof, this Agreement shall automatically terminate and the Bank shall have no
further obligation hereunder.
13. The rights of the Employee under this Agreement and of any beneficiary of
the Employee shall be solely those of an unsecured creditor of the Bank, and
neither the Employee nor any beneficiary of the Employee shall have or acquire
any interest, rights or claims to any property or assets of the Bank by virtue
or this Agreement except as set forth in paragraph 16(b). The Bank's obligation
hereunder, except as set forth in paragraph 16(b), shall be an unfunded and
unsecured promise to pay money in the future.
14. Hereafter, either during his full-time employment or while he is receiving
any benefits under this Agreement, Employee agrees that he will not enter into
competition with the Bank, directly or indirectly, within the Town of Somerset
or a fifty (50) mile radius thereof, either as a director, officer, employee,
agent, consultant, partner or any other capacity with any business which is in
substantial competition with the Bank. The reasonable judgment of a majority of
the Board of Directors that such competition exists shall be conclusive for the
purposes of this Agreement. This provision shall not be construed to prevent
the Employee from owning shares in any publicly traded corporation for
investment purposes.
15. In the event that Employee should violate the provisions of Article 14
hereof, and should he continue to do so without adequate cause for a period of
thirty days after the Bank shall have requested him in writing to refrain from
an action prohibited by said Article 14, Employee agrees that no further
payments shall be due him, his spouse, or any other designated beneficiary
under this Agreement and that the Bank shall have no further obligation
whatsoever hereunder. Any disputes Hereunder shall be referred to arbitration
pursuant to Article 17 hereof.
16. (a) The Bank agrees that it will not merge or consolidate with any other
Bank or organization, or permit its business to be taken over by any other
organization, unless and until the succeeding or continuing corporation or
other organization shall expressly assume the rights and obligations of the
Bank herein set forth.
The Bank further agrees that it will not cease its business activities or
terminate its existence, other than as heretofore set forth in this Article,
without having made adequate provision for the fulfilling of its obligations
hereunder.
(b) In the event of a Change of Control (as defined below) of the Bank,
the Bank shall immediately fund, within 90 days of the change of control, the
unpaid of compensation hereunder by establishing an irrevocable trust account
with an independent corporate Trustee which is a national or state charted bank
with Trustee powers located in Massachusetts or Rhode Island, funded with an
amount which will be sufficient to meet all of Employer's obligations
hereunder. The terms of the Trust shall meet the requirements of the Internal
Revenue Service for "rabbi trusts" and shall generally provide as set forth
herein modified or expanded as necessary to meet said IRS requirements. The
Trust fund shall be held and managed by the Trustee for the exclusive purpose
of providing the compensation hereunder to Employee hereunder and the Trustee
shall act as agent of the Bank by making payments of benefits to the Employee
in accordance with the terms hereof. Any and all expenses and taxes incurred by
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reason of the Trust and its income shall be paid by the Bank. After all
benefits payable hereunder have been paid to the Employee or his beneficiaries
or alter this Agreement has otherwise properly terminated under its terms, any
amounts remaining in the Trust account shall revert to Bank. Except for the
rights of creditors in the event of Bank's bankruptcy or receivership, Bank
shall have no right to reclaim amounts contributed to the Trust hereunder until
all benefits have been paid or this Agreement has properly terminated under its
terms. In the event of Bank's bankruptcy or receivership, the Trustee shall,
upon proper notice, deliver all assets held hereunder to the Trustee in
bankruptcy or the duly court appointed receiver for the benefit of the general
creditors (including Employee) of Bank.
"Change of Control" as used herein means any merger or consolidation with
or acquisition by any other organization, the sale of substantially all the
assets of the Bank to another person or organization, or the acquisition
directly or indirectly of 20% or more of the common stock of the Bank by one or
more persons or organizations acting in concert.
17. Unless otherwise provided in this Agreement, any controversy or claim
arising out of or relating to this contract, or the breach thereof, shall be
settled by arbitration in accordance with the Rules of the American Arbitration
Association, and judgment upon the award rendered by the Arbitrator(s) may be
entered in any Court having jurisdiction thereof. The Bank agrees that it will
pay employee's costs including reasonable attorneys' fees in connection with
any controversy or claim hereunder in which Employee prevails or in which the
Arbitrator(s) or court determine that the Bank should pay such costs.
18. This Agreement shall be binding upon and inure to the benefit of the
parties, the Bank's successors and assigns, and the Employee's heirs,
beneficiaries, executors and administrators.
19. This Agreement shall be construed and administered in such manner as shall
be necessary to effect compliance with Section 409A. If and to the extent that
you or the Corporation reasonably determine that any amount payable under this
Agreement or the manner of administration of this Agreement would fail to
satisfy any applicable requirement of Section 409A of the Code and trigger the
additional tax and/or penalties or interest imposed by Section 409A of the
Code, the Agreement shall be administered, modified, and/or amended to bring it
into compliance with Section 409A of the Code and avoid such additional tax,
penalties or interest, and preserve the intended amounts and benefits payable
to Employee.
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IN WITNESS WHEREOF the parties have executed this Agreement the day and year
first written above.
Xxxxx'x Ferry Trust Company
Attest: By:
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Secretary: Xxxxxxx Xxxxxxxx Title: Xxxx Xxxxxx, Lead Director
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Xxxxxx X. Xxxxxxx
