Exhibit 10.5
Employment Agreement between The Massachusetts Co-operative Bank.
and ▇▇▇▇ ▇. ▇▇▇▇▇▇
THE MASSACHUSETTS CO-OPERATIVE BANK ONE-YEAR
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") is made effective as of December 22,
1998 by and among The Massachusetts Co-operative Bank (the "Bank"), a
Massachusetts-chartered stock co-operative bank, with its principal
administrative office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
Massachusetts Fincorp, Inc., a corporation organized under the laws of the
State of Delaware, the holding company for the Bank (the "Holding
Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Executive").
WHEREAS, the Bank wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided,
the parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of her employment hereunder, Executive agrees to
serve as Chief Financial Officer and Treasurer of the Bank. Executive shall
render administrative and management services to the Bank such as are
customarily performed by persons situated in a similar executive capacity.
During said period, Executive also agrees to serve, if elected, as an
officer and director of the Holding Company or any subsidiary of the Bank.
2. TERMS AND DUTIES.
(a) The period of Executive's employment under this Agreement shall
be deemed to have commenced as of the date first above written and shall
continue for a period of twelve (12) full calendar months thereafter.
Commencing on the first anniversary date of this Agreement, and continuing
on each anniversary thereafter, the disinterested members of the board of
directors of the Bank ("Board") may extend the Agreement an additional year
such that the remaining term of the Agreement shall be one (1) year unless
the Executive elects not to extend the term of this Agreement by giving
written notice in accordance with Section 8 of this Agreement. Executive
shall abstain from any vote regarding an extension of the term of this
Agreement. The Board will review the Agreement and Executive's performance
annually for purposes of determining whether to extend the Agreement and
the rationale and results thereof shall be included in the minutes of the
Board's meeting. The Board shall give notice to the Executive as soon as
possible after such review as to whether the Agreement is to be extended.
(b) During the period of Executive's employment hereunder, except
for periods of absence occasioned by illness, reasonable vacation periods,
and reasonable leaves of absence, Executive shall devote substantially all
his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder including activities and services
related to the organization, operation and management of the Bank and
participation in community and civic organizations; provided, however,
that, with the approval of the Board, as evidenced by a resolution of such
Board, from time to time, Executive may serve, or continue to serve, on the
boards of directors of, and hold any other offices or positions in,
companies or organizations, which, in such Board's judgment, will not
present any conflict of interest with the Bank, or materially affect the
performance of Executive's duties pursuant to this Agreement.
(c) Notwithstanding anything herein to the contrary, Executive's
employment with the Bank may be terminated by the Bank or the Executive
during the term of this Agreement, subject to the terms and conditions of
this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
Executive shall receive compensation and reimbursement under this
Agreement, as follows:
(a) The Bank shall pay Executive as compensation a salary of
$69,000 per year ("Base Salary") payable in accordance with the normal
payroll practices of the Bank. Base Salary shall include any amounts of
compensation deferred by Executive under any tax-qualified retirement or
welfare benefit plan or any other deferred compensation arrangement
maintained by the Bank. During the period of this Agreement, Executive's
Base Salary shall be reviewed at least annually with the Bank Board making
its first review no later than one year from the date of this Agreement.
Such review shall be conducted by the Board or by a Committee of the Board,
delegated such responsibility by the Board. The Committee or the Board may
increase Executive's Base Salary at any time during this Agreement and the
resulting annual salary attributable to such increase shall become the
"Base Salary" for purposes of this Agreement. In addition to the Base
Salary provided in this Section 3(a), the Bank shall also provide
Executive, at no premium cost to Executive, with all such other benefits as
are provided uniformly to permanent full-time employees of the Bank.
(b) Discretionary Bonuses. The Executive shall be entitled to
participate in an equitable manner with all other executive officers of the
Bank in discretionary bonuses as authorized and declared by the Bank Board
to executive employees. No other compensation provided for in this
Agreement shall be deemed a substitute for the Executive's right to
participate in such bonuses when and as declared by the Bank Board.
(c) The Executive shall be entitled to participate in any employee
benefit plans, arrangements and perquisites substantially equivalent to
those in which Executive was participating or otherwise deriving benefit
from immediately prior to the beginning of the term of this Agreement, and
the Bank will not, without Executive's prior written consent, make any
changes in such plans, arrangements or perquisites which would materially
adversely affect Executive's rights or benefits thereunder; except to the
extent such changes are made applicable to all Bank employees on a non-
discriminatory basis. Without limiting the generality of the foregoing
provisions of this Subsection (c), Executive shall be entitled to
participate in or receive benefits under all plans relating to stock
options, restricted stock awards, stock purchases, pension, thrift,
supplemental retirement, profit-sharing, employee stock ownership, group
life insurance, medical and other health and welfare coverage, education,
cash or stock bonuses that are now or hereafter made available by the Bank
in the future to its senior executives and key management employees,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. Nothing paid to the
Executive under any such plan or arrangement will be deemed to be in lieu
of other compensation to which the Executive is entitled under this
Agreement.
(d) In addition to the Base Salary provided for by paragraph (a) of
this Section 3 and other compensation provided for by paragraph (b) of this
Section 3, the Bank shall pay or reimburse Executive for all reasonable
travel and other reasonable expenses incurred by Executive performing her
obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to
time determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein
defined) during the Executive's term of employment under this Agreement,
the provisions of this Section shall apply. As used in this Agreement, an
"Event of Termination" shall mean and include any one or more of the
following: (i) the termination by the Bank or the Holding Company of
Executive's full-time employment hereunder for any reason other than a
termination governed by Section 5(a) hereof, or Termination for Cause, as
defined in Section 7 hereof; (ii) Executive's resignation from the Bank's
employ upon any (A) failure to elect or reelect or to appoint or reappoint
Executive as Chief Financial Officer and Treasurer, unless consented to by
the Executive, (B) a material change in Executive's function, duties, or
responsibilities, which change would cause Executive's position to become
one of lesser responsibility, importance, or scope from the position and
attributes thereof described in Section 1, above, unless consented to by
Executive, (C) a relocation of Executive's principal place of employment by
more than 25 miles from its location at the effective date of this
Agreement, unless consented to by the Executive, (D) a material reduction
in the benefits and perquisites to the Executive from those being provided
as of the effective date of this Agreement, unless consented to by the
Executive, (E) a liquidation or dissolution of the Bank or Holding Company,
or (F) breach of this Agreement by the Bank. Upon the occurrence of any
event described in clauses (A), (B), (C), (D), (E) or (F), above, Executive
shall have the right to elect to terminate her employment under this
Agreement by resignation upon not less than sixty (60) days prior written
notice given within six (6) full months after the event giving rise to said
right to elect.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 8, the Bank shall be obligated to pay
Executive, or, in the event of her subsequent death, her beneficiary or
beneficiaries, or her estate, as the case may be a sum equal to the sum of:
(i) the Base Salary and bonuses in accordance with Sections 3(a) and 3(b);
respectively, that would have been paid to Executive for the remaining term
of this Agreement had the Event of Termination not occurred, plus the value
as calculated by a recognized firm customarily performing such valuation,
of any stock options or related rights which as of the Date of Termination
have been granted to Executive but are not exercisable by Executive and the
value of any restricted stock or related rights which have been granted to
Executive; but in which Executive does not have a non-forfeitable or fully-
vested interest as of the Date of Termination; and; and (ii) all benefits,
including health insurance in accordance with Section 3(c) that would have
been provided to Executive for the remaining term of the this Agreement had
an Event of Termination not occur; provided, however, that any payments
pursuant to this subsection and subsection 4(c) below shall not, in the
aggregate, exceed three (3) times Executive's average annual compensation
for the five (5) most recent taxable years that Executive has been employed
by the Bank or such lesser number of years in the event that Executive
shall have been employed by the Bank for less than five (5) years. In the
event the Bank is not in compliance with its minimum capital requirements
or if such payments pursuant to this subsection (b) would cause the Bank's
capital to be reduced below its minimum regulatory capital requirements,
such payments shall be deferred until such time as the Bank or successor
thereto is in capital compliance. At the election of the Executive, which
election is to be made upon an Event of Termination, such payments shall be
made in a lump sum as of the Executive's Date of Termination. In the event
that no election is made, payment to Executive will be made on a monthly
basis in approximately equal installments during the remaining term of the
Agreement. Such payments shall not be reduced in the event the Executive
obtains other employment following termination of employment.
(c) Upon the occurrence of an Event of Termination, the Bank will
cause to be continued life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Bank or the
Holding Company for Executive prior to her termination at no premium cost
to the Executive, except to the extent such coverage may be changed in its
application to all Bank or Holding Company employees. Such coverage shall
cease upon the expiration of the remaining term of this Agreement.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" shall
mean an event of a nature that: (i) would be required to be reported in
response to Item 1(a) of the current report on Form 8-K, as in effect on
the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange
Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"); or (ii) results in a Change in Control of
the Bank or the Holding Company within the meaning of the Change in Bank
Control Act and the Rules and Regulations promulgated by the Federal
Deposit Insurance Corporation ("FDIC") at 12 C.F.R. [Section Sign] 303.4(a)
with respect to the Bank and the Board of Governors of the Federal Reserve
System ("FRB") at 12 C.F.R. [Section Sign] 225.41(b) with respect to the
Holding Company, as in effect on the date hereof; or (iii) results in a
transaction requiring prior FRB approval under the Bank Holding Company Act
of 1956 and the regulations promulgated thereunder by the FRB at 12 C.F.R.
[Section Sign] 225.11, as in effect on the date hereof except for the
Holding Company's acquisition of the Bank; or (iv) without limitation such
a Change in Control shall be deemed to have occurred at such time as (A)
any "person" (as the term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-
3 under the Exchange Act), directly or indirectly, of securities of the
Bank or the Holding Company representing 20% or more of the Bank's or the
Holding Company's outstanding securities except for any securities of the
Bank purchased by the Holding Company in connection with the conversion of
the Bank to the stock form and any securities purchased by any tax
qualified employee benefit plan of the Bank; or (B) individuals who
constitute the Board of Directors 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 Holding Company's stockholders was approved by the same Nominating
Committee serving under an Incumbent Board, shall be, for purposes of this
clause (B), considered as though he were a member of the Incumbent Board;
or (C) a plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or the Holding Company or similar
transaction occurs in which the Bank or Holding Company is not the
resulting entity; or (D) solicitations of shareholders of the Holding
Company, by someone other than the current management of the Holding
Company, seeking stockholder approval of a plan or reorganization, merger
of consolidation of the Holding Company or Bank or similar transaction with
one or more corporations as a result of which the outstanding shares of the
class of securities then subject to the plan or transaction are exchanged
for or converted into cash or property or securities not issued by the Bank
or the Holding Company shall be distributed; or (E) a tender offer is made
for 20% or more of the voting securities of the Bank or the Holding
Company.
(b) If a Change in Control has occurred pursuant to Section 5(a) or
the Board has determined that a Change in Control has occurred, Executive
shall be entitled to the benefits provided in paragraphs (c), and (d) of
this Section 5 upon her subsequent termination of employment at any time
during the term of this Agreement due to: (1) Executive's dismissal or (2)
Executive's voluntary resignation following any demotion, loss of title,
office or significant authority or responsibility, material reduction in
annual compensation or benefits or relocation of her principal place of
employment by more than 25 miles from its location immediately prior to the
Change in Control, unless such termination is because of her death,
disability, retirement or termination for Cause.
(c) Upon Executive's entitlement to benefits pursuant to Section
5(b), the Bank shall pay Executive, or in the event of her subsequent
death, her beneficiary or beneficiaries, or her estate, as the case may be,
a sum equal to the greater of: (1) the Base Salary and bonuses in
accordance with Sections 3(a) and 3(b), respectively, that would have been
paid to Executive for the payments due for the remaining term of the
Agreement had the event described in Subsection (b) of this Section 5 not
occurred, plus value, as calculated by a recognized firm customarily
performing such valuation, of any stock option or related rights which as
of the Date of Termination have been granted to Executive, but are not
exercisable by Executive and the value of restricted stock awards or
related rights which have been granted to Executive, but which Executive
does not have a non-forfeitable or fully-vested interest as of the Date of
Termination and all benefits, including health insurance, in accordance
with Section 3(c) that would have been provided to Executive for the
remaining term of this Agreement had the event described in Subsection (b)
of this Section 5 not occurred; or 2) three (3) times Executive's Average
Annual Compensation (as defined herein) for the five (5) most recent
taxable years that Executive has been employed by the Bank or such lesser
number of years in the event that Executive shall have been employed by the
Bank for less than five (5) years. Such "Average Annual Compensation" shall
include all taxable income paid by the Bank or Holding Company, including
but not limited to, Base Salary, commissions, and bonuses, as well as
contributions on Executive's behalf to any pension and/or profit sharing
plan, severance payments, retirement payments, directors or committee fees
and fringe benefits paid or to be paid to the Executive in any such year
and payment of any expense items without accountability or business purpose
or that do not meet the Internal Revenue Service requirements for
deductibility by the Bank; provided, however, that any payment under this
provision and subsection 5(d) below shall not exceed three (3) times the
Executive's average annual compensation over a five (5) year period. In the
event the Bank is not in compliance with its minimum capital requirements
or if such payments would cause the Bank's capital to be reduced below its
minimum regulatory capital requirements, such payments shall be deferred
until such time as the Bank or successor thereto is in capital compliance.
At the election of the Executive, which election is to be made prior to a
Change in Control, such payment shall be made in a lump sum as of the
Executive's Date of Termination. In the event that no election is made,
payment to the Executive will be made in approximately equal installments
on a monthly basis over a period of twelve (12) months following the
Executive's termination. Such payments shall not be reduced in the event
Executive obtains other employment following termination of employment.
(d) Upon the Executive's entitlement to benefits pursuant to
Section 5(b), the Bank will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by
the Bank for Executive prior to her severance at no premium cost to the
Executive, except to the extent that such coverage may be changed in its
application for all Bank employees on a non-discriminatory basis. Such
coverage and payments shall cease upon the expiration of twelve (12) months
following the Date of Termination.
6. CHANGE OF CONTROL RELATED PROVISIONS
Notwithstanding the provisions of Section 5, in no event shall the
aggregate payments or benefits to be made or afforded to Executive under
said paragraphs (the "Termination Benefits") constitute an "excess
parachute payment" under Section 280G of the Internal Revenue Code of 1986,
as amended, or any successor thereto, and in order to avoid such a result,
Termination Benefits will be reduced, if necessary, to an amount (the "Non-
Triggering Amount"), the value of which is one dollar ($1.00) less than an
amount equal to three (3) times Executive's "base amount", as determined in
accordance with said Section 280G. The allocation of the reduction required
hereby among the Termination Benefits provided by Section 5 shall be
determined by Executive.
7. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule or regulation
(other than traffic violations or similar offenses) or final cease-and-
desist order or material breach of any provision of this Agreement.
Notwithstanding the foregoing, Executive shall not be deemed to have been
Terminated for Cause unless and until there shall have been delivered to
her a Notice of Termination which shall include a copy of a resolution duly
adopted by the affirmative vote of not less than a majority of the members
of the Board at a meeting of the Board called and held for that purpose
(after reasonable notice to Executive and an opportunity for him, together
with counsel, to be heard before the Board), finding that in the good faith
opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail.
Executive shall not have the right to receive compensation or other
benefits for any period after the Date of Termination for Cause. During the
period beginning on the date of the Notice of Termination for Cause
pursuant to Section 8 hereof through the Date of Termination for Cause,
stock options and related limited rights granted to Executive under any
stock option plan shall not be exercisable nor shall any unvested awards
granted to Executive under any stock benefit plan of the Bank, the Holding
Company or any subsidiary or affiliate thereof, vest. At the Date of
Termination for Cause, such stock options and related limited rights and
any unvested awards shall become null and void and shall not be exercisable
by or delivered to Executive at any time subsequent to such Termination for
Cause.
8. NOTICE.
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the
Notice of Termination (which, in the case of a Termination for Cause, shall
not be less than thirty days from the date such Notice of Termination is
given.).
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other
party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally determined,
either by mutual written agreement of the parties, by a binding arbitration
award, or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal
having been perfected) and, provided further, that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in
good faith and the party giving such notice pursues the resolution of such
dispute with reasonable diligence. Notwithstanding the pendency of any such
dispute, in the event the Executive is terminated for reasons other than
Termination for Cause, the Bank will continue to pay Executive his Base
Salary in effect when the notice giving rise to the dispute was given until
the earlier of: 1) the resolution of the dispute in accordance with this
Agreement or 2) the expiration of the remaining term of this Agreement as
determined as of the Date of Termination. Amounts paid under this Section
are in addition to all other amounts due under this Agreement and shall not
be offset against or reduce any other amounts due under this Agreement.
9. POST-TERMINATION OBLIGATIONS.
All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 9 for one (1) full year
after the earlier of the expiration of this Agreement or termination of
Executive's employment with the Bank. Executive shall, upon reasonable
notice, furnish such information and assistance to the Bank as may
reasonably be required by the Bank in connection with any litigation in
which it or any of its subsidiaries or affiliates is, or may become, a
party.
10. NON-COMPETITION AND NON-DISCLOSURE OF BANK BUSINESS.
(a) Upon any termination of Executive's employment hereunder
pursuant to Section 4 hereof, Executive agrees not to compete with the Bank
for a period of one (1) year following such termination in any city, town
or county in which the Executive's normal business office is located and
the Bank has an office or has filed an application for regulatory approval
to establish an office, determined as of the effective date of such
termination, except as agreed to pursuant to a resolution duly adopted by
the Board. Executive agrees that during such period and within said cities,
towns and counties, Executive shall not work for or advise, consult or
otherwise serve with, directly or indirectly, any entity whose business
materially competes with the depository, lending or other business
activities of the Bank. The parties hereto, recognizing that irreparable
injury will result to the Bank, its business and property in the event of
Executive's breach of this Subsection 10(a) agree that in the event of any
such breach by Executive, the Bank, will be entitled, in addition to any
other remedies and damages available, to an injunction to restrain the
violation hereof by Executive, Executive's partners, agents, servants,
employees and all persons acting for or under the direction of Executive.
Nothing herein will be construed as prohibiting the Bank from pursuing any
other remedies available to the Bank for such breach or threatened breach,
including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and
affiliates thereof, as it may exist from time to time, is a valuable,
special and unique asset of the business of the Bank. Executive will not,
during or after the term of his employment, disclose any knowledge of the
past, present, planned or considered business activities of the Bank or
affiliates thereof to any person, firm, corporation, or other entity for
any reason or purpose whatsoever. Notwithstanding the foregoing, Executive
may disclose any knowledge of banking, financial and/or economic
principles, concepts or ideas which are not solely and exclusively derived
from the business plans and activities of the Bank. Further, Executive may
disclose information regarding the business activities of the Bank to the
Massachusetts Commissioner of Banks and the Federal Deposit Insurance
Corporation ("FDIC") pursuant to a formal regulatory request. In the event
of a breach or threatened breach by Executive of the provisions of this
Section, the Bank will be entitled to an injunction restraining Executive
from disclosing, in whole or in part, the knowledge of the past, present,
planned or considered business activities of the Bank or affiliates
thereof, or from rendering any services to any person, firm, corporation,
other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be
construed as prohibiting the Bank from pursuing any other remedies
available to the Bank for such breach or threatened breach, including the
recovery of damages from Executive.
11. SOURCE OF PAYMENTS.
(a) All payments provided in this Agreement shall be timely paid in
cash or check from the general funds of the Bank. The Holding Company,
however, unconditionally guarantees payment and provision of all amounts
and benefits due hereunder to Executive and, if such amounts and benefits
due from the Bank are not timely paid or provided by the Bank, such amounts
and benefits shall be paid or provided by the Holding Company.
(b) Notwithstanding any provision herein to the contrary, to the
extent that payments and benefits, as provided by this Agreement, are paid
to or received by Executive under the Employment Agreement dated December
22, 1998, between Executive and the Holding Company, such compensation
payments and benefits paid by the Holding Company will be subtracted from
any amounts due simultaneously to Executive under similar provisions of
this Agreement. Payments pursuant to this Agreement and the Holding Company
Agreement shall be allocated in proportion to the services rendered and
time expended on such activities by Executive as determined by the Holding
Company and the Bank on a quarterly basis.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Bank or
any predecessor of the Bank and Executive, except that this Agreement shall
not affect or operate to reduce any benefit or compensation inuring to
Executive of a kind elsewhere provided. No provision of this Agreement
shall be interpreted to mean that Executive is subject to receiving fewer
benefits than those available to him without reference to this Agreement.
13. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation, or to
execution, attachment, levy, or similar process or assignment by operation
of law, and any attempt, voluntary or involuntary, to affect any such
action shall be null, void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive and the Bank and their respective successors and assigns.
14. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party
charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
such waiver shall operate only as to the specific term or condition waived
and shall not constitute a waiver of such term or condition for the future
as to any act other than that specifically waived.
15. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of
any provision, is held invalid, such invalidity shall not affect any other
provision of this Agreement or any part of such provision not held so
invalid, and each such other provision and part thereof shall to the full
extent consistent with law continue in full force and effect.
16. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely
for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
17. GOVERNING LAW.
The validity, interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the Commonwealth of
Massachusetts applicable to contracts entered into and to be performed
entirely within the Commonwealth of Massachusetts.
18. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive
within fifty (50) miles from the location of the Bank, in accordance with
the rules of the American Arbitration Association then in effect. Judgment
may be entered on the arbitrator's award in any court having jurisdiction;
provided, however, that Executive shall be entitled to seek specific
performance of her right to be paid until the Date of Termination during
the pendency of any dispute or controversy arising under or in connection
with this Agreement.
In the event any dispute or controversy arising under or in
connection with Executive's termination is resolved in favor of Executive,
whether by judgment, arbitration or settlement, Executive shall be entitled
to the payment of all back-pay, including salary, bonuses and any other
cash compensation, fringe benefits and any compensation and benefits due
Executive under this Agreement.
19. PAYMENT OF COSTS AND LEGAL FEES.
All reasonable costs and legal fees paid or incurred by Executive
pursuant to any dispute or question of interpretation relating to this
Agreement shall be paid or reimbursed by the Bank if Executive is
successful on the merits pursuant to a legal judgment, arbitration or
settlement.
20. INDEMNIFICATION.
(a) The Bank shall provide Executive (including her heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense and shall indemnify
Executive (and her heirs, executors and administrators) as permitted under
federal law against all expenses and liabilities reasonably incurred by her
in connection with or arising out of any action, suit or proceeding in
which she may be involved by reason of her having been a director or
officer of the Bank (whether or not she continues to be a director or
officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgments,
court costs and attorneys' fees and the cost of reasonable settlements.
(b) Any payments made to Executive pursuant to this Section are
subject to and conditioned upon compliance with 12 U.S.C. Section 1828(k),
12 C.F.R. Part 359 and 12 C.F.R. Section 545.121 and any rules or
regulations promulgated thereunder.
21. SUCCESSOR TO THE BANK.
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Holding
Company, expressly and unconditionally to assume and agree to perform the
Bank's obligations under this Agreement, in the same manner and to the same
extent that the Bank would be required to perform if no such succession or
assignment had taken place.
SIGNATURES
IN WITNESS WHEREOF, The Massachusetts Co-operative Bank and
Massachusetts Fincorp, Inc. have caused this Agreement to be executed and
their seals to be affixed hereunto by their duly authorized officers and
directors, and Executive has signed this Agreement, on the 22nd day of
December, 1998.
ATTEST: THE MASSACHUSETTS CO-OPERATIVE BANK
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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For the Entire Board of
Directors
[SEAL]
ATTEST: MASSACHUSETTS FINCORP, INC.
(Guarantor)
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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For the Entire Board of
Directors
[SEAL]
WITNESS:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Executive