Exhibit 10.4
REVERE FEDERAL SAVINGS BANK
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made and
entered into as of December 18, 1999, by and between REVERE FEDERAL SAVINGS
BANK, a savings association organized and operating under the federal laws of
the United States and having an office at 310 Broadway, Revere, Massachusetts
02151 ("Bank") and JUDITH E. TENAGLIA, an individual residing at 54 Norman Road,
Melrose, Massachusetts 02176 ("Executive").
W I T N E S S E T H :
WHEREAS, the Bank entered into an employment agreement with the Executive
as of December 18, 1998 (the "Prior Agreement") in connection with the
transaction by which the Bank reorganized from a federally chartered mutual
savings bank to a federally chartered stock savings bank and became a
wholly-owned subsidiary of RFS Bancorp, Inc. ("RFS Bancorp"), a mid-tier stock
holding company, which is majority owned by Revere Bancorp, M.H.C., a mutual
holding company; and
WHEREAS, the Bank and the Executive desire to amend and restate the Prior
Agreement as of December 18, 1999 (the "Effective Date") to extend the
Employment Period thereunder;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions hereinafter set forth, the Bank and the Executive hereby agree as
follows:
SECTION 1. EMPLOYMENT.
The Bank agrees to continue to employ the Executive, and the Executive
hereby agrees to such continued employment, during the period and upon the terms
and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT PERIOD.
(a) The terms and conditions of this Agreement shall be and remain in
effect during the period of employment established under this section 2
("Employment Period"). The Employment Period shall be for an initial term of
three years beginning on the Effective Date of this Agreement. Prior to the
first anniversary of the Effective Date of this Agreement and prior to each
anniversary date thereafter (each, an "Anniversary Date"), the Board of
Directors of the Bank ("Board") shall review the terms of this Agreement and the
Executive's performance of services
hereunder and may, in the absence of objection from the Executive, approve an
extension of the Employment Period. In such event, the Employment Period shall
be extended to the third anniversary of the relevant Anniversary Date. In no
event, however, shall any such extension take effect at a time when the
Executive could elect to resign pursuant to section 9(a)(i) or 11 and claim
severance benefits under section 9(b).
(b) For all purposes of this Agreement, the term "Remaining Unexpired
Employment Period" as of any date shall mean the period beginning on such date
and ending on the Anniversary Date on which the Employment Period (as extended
pursuant to section 2(a) of this Agreement) is then scheduled to expire.
(c) Nothing in this Agreement shall be deemed to prohibit the Bank from
terminating the Executive's employment at any time during the Employment Period
with or without notice for any reason; PROVIDED, HOWEVER, that the relative
rights and obligations of the Bank and the Executive in the event of any such
termination shall be determined under this Agreement.
SECTION 3. DUTIES.
Executive shall serve as an executive officer of the Bank and shall report
directly to the President and Chief Executive Officer ("CEO") and the Executive
Vice President and Chief Financial Offier ("CFO") of the Bank. In this capacity,
the Executive shall have such power, authority and responsibility and shall
perform such duties as may be assigned to her from time to time by the CEO, the
CFO or at their direction. Executive shall devote her full business time and
attention (other than during weekends, holidays, approved vacation periods, and
periods of illness or approved leaves of absence) to the business and affairs of
the Bank and shall use her best efforts to advance the interests of the Bank.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by the Executive
hereunder, the Bank shall pay to her a salary at an initial annual rate of sixty
thousand dollars ($60,000), payable in approximately equal installments in
accordance with the Bank's customary payroll practices for senior officers. The
Board of Directors ("Board") shall review the Executive's annual rate of salary
at such times during the Employment Period as it deems appropriate, but not less
frequently than once every twelve months, and may, in its discretion, approve an
increase in the Executive's annual rate of salary. In addition to salary, the
Executive may receive other cash compensation from the Bank for services
hereunder, including but not limited to, an annual cash bonus, at such times, in
such amounts and on such terms and conditions as the Board may determine from
time to time.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, the Executive shall be treated as an employee
of the Bank and shall be entitled to participate in and receive benefits under
any and all qualified or non-qualified retirement, pension, savings,
profit-sharing or stock bonus plans, any and all group life, health (including
hospitalization, medical and major medical), dental, accident and long-term dis
ability insurance plans, and any other employee benefit and compensation plans
(including, but not limited
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to, any incentive compensation plans or programs, stock option and appreciation
rights plans and restricted stock plans) as may from time to time be maintained
by, or cover employees of, the Bank or RFS Bancorp, in accordance with the terms
and conditions of such employee benefit plans and programs and compensation
plans and programs and consistent with the Bank's customary practices. 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.
SECTION 6. INDEMNIFICATION AND INSURANCE.
(a) During the Employment Period and for a period of six (6) years
thereafter, the Bank shall cause the Executive to be covered by and named as an
insured under any policy or contract of insurance obtained by it to insure its
directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Bank or service in
other capacities at the request of the Bank. The coverage provided to Executive
pursuant to this section 6 shall be of the same scope and on the same terms and
conditions as the coverage (if any) provided to other officers or directors of
the Bank.
(b) For as long as the Bank is subject to regulation by the Office of
Thrift Supervision ("OTS"), the Bank shall indemnify the Executive in accordance
with 12 Code of Federal Regulations ("C.F.R") Section 545.121. From and after
the earliest date on which the Bank is not subject to regulation by the OTS, to
the maximum extent permitted under applicable law, during the Employment Period
and for a period of six (6) years thereafter, the Bank shall indemnify Executive
against and hold her harmless from any costs, liabilities, losses and exposures
to the fullest extent and on the most favorable terms and conditions that
similar indemnification is offered to any director or officer of the Bank or any
subsidiary or affiliate thereof. This section 6(b) shall not be applicable where
section 18 is applicable.
SECTION 7. OUTSIDE ACTIVITIES.
Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as she may disclose to and as
may be approved by the Board (which approval shall not be unreasonably
withheld); PROVIDED, HOWEVER, that such service shall not materially interfere
with the performance of her duties under this Agreement. The Executive may also
engage in personal business and investment activities which do not materially
interfere, and are not inconsistent with, the performance of her duties and
responsibilities hereunder; AND, PROVIDED, FURTHER, HOWEVER, that such
activities are not prohibited under 12 C.F.R. Section 571.7 or 571.9 or any code
of conduct or investment or securities trading policy established by the Bank
and generally applicable to all similarly situated executives (including,
without limitation, any applicable conflict of interest policy adopted by the
Board as contemplated by 12 C.F.R. Section 571.7). Executive may also serve as
an officer or director of the RFS Bancorp or Revere Bancorp, M.H.C. upon such
terms and conditions as the Bank and the RFS Bancorp or Revere Bancorp, M.H.C.
may mutually agree upon, and such service shall not be deemed to materially
interfere with the Executive's performance of her duties hereunder or otherwise
result in a material breach of this Agreement. The Executive shall not receive
compensation from the Bank for service as an officer or director of either RFS
Bancorp or Revere Bancorp, M.H.C.
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SECTION 8. WORKING FACILITIES AND EXPENSES.
Executive's principal place of employment shall be at the Bank's executive
offices at the address first above written, or at such other location within
Suffolk County at which the Bank shall maintain its principal executive offices,
or at such other location as the Bank and the Executive may mutually agree upon.
The Bank shall provide the Executive at her principal place of employ ment with
working facilities, including secretarial and other support services, that are
commensurate with her responsibilities to the Bank and necessary or appropriate
for the performance of her assigned duties under this Agreement. The Bank shall
reimburse Executive for her ordinary and necessary business expenses, including,
without limitation, all expenses associated with her business use of an
automobile, fees for memberships in such clubs and organizations as the
Executive and the Bank shall mutually agree are necessary and appropriate for
business purposes, and her travel and entertainment expenses incurred in
connection with the performance of her duties under this Agree ment, in each
case upon presentation to the Bank of an itemized account of such expenses in
such form as the Bank may reasonably require.
SECTION 9. TERMINATION OF EMPLOYMENT WITH SEVERANCE BENEFITS.
(a) Executive shall be entitled to the severance benefits described in
section 9(b) herein in the event that her employment with the Bank terminates
during the Employment Period under any of the following circumstances:
(i) Executive's voluntary resignation from employment with the Bank
within ninety (90) days following:
(A) the failure of the Board to appoint or re-appoint or elect
or re-elect Executive to the position stated in section 3 of this
Agreement (or a more senior office of the Bank);
(B) in the event that the Executive is a member of the Board,
the failure of the stockholders of the Bank to elect or re-elect
Executive to the Board or the failure of the Board (or the nominating
committee thereof) to nominate the Executive for such election or
re-election;
(C) the expiration of a thirty (30) day period following the
date on which the Executive gives written notice to the Bank of its
material failure, whether by amendment of the Bank's Organization
Certificate or By-Laws, action of the Board or the Bank's
stockholders or otherwise, to vest in Executive the functions,
duties, or responsibilities prescribed in section 3 of this
Agreement, unless, during such thirty (30) day period, such failure
is cured in a manner determined by Executive, in her discretion, to
be satisfactory; or
(D) the expiration of a thirty (30) day period following the
date on which Executive gives written notice to the Bank of its
material breach of any term, condition or covenant contained in this
Agreement (including, without limitation any reduction of Executive's
rate of base salary in effect from time to time and any change
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in the terms and conditions of any compensation or benefit program in
which Executive participates which, either individually or together
with other changes, has a material adverse effect on the aggregate
value of her total compensation package), unless, during such thirty
(30) day period, such failure is cured in a manner determined by
Executive, in her discretion, to be satisfactory; or
(ii) subject to the provisions of section 10, the termination of
Executive's employment with the Bank for any other reason not described in
section 9(a) other than a termination of the Executive's employment for
"cause;"
then, the Bank shall provide the benefits and pay to Executive the amounts
described in section 9(b).
(b) Upon the termination of Executive's employment with the Bank under
circumstances described in section 9(a) of this Agreement, the Bank shall pay
and provide to Executive (or, in the event of her death, to her estate):
(i) the portion, if any, of the compensation (including, without
limitation, all items which constitute wages under applicable law and the
payment of which is not otherwise provided for under this section 9(b))
earned by the Executive through the date of the termination of her
employment with the Bank which remains unpaid as of such date, such payment
to be made at the time and in the manner prescribed by law applicable to
the payment of wages but in no event later than thirty (30) days after the
Executive's termination of employment;
(ii) the benefits, if any, to which she is entitled as a former
employee under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the Bank's officers and
employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long-term disability
insurance benefits, in addition to that provided pursuant to section
9(b)(ii), and after taking into account the coverage provided by any
subsequent employer, if and to the extent necessary to provide for
Executive, for the Remaining Unexpired Employment Period, coverage
equivalent to the coverage to which she would have been entitled under such
plans (as in effect on the date of her termination of employment, or, if
her termination of employment occurs after a Change of Control, on the date
of such Change of Control, whichever benefits are greater), if she had
continued work ing for the Company during the Remaining Unexpired
Employment Period at the highest annual rate of compensation achieved
during that portion of the Employment Period which is prior to Executive's
termination of employment with the Bank; and
(iv) within thirty (30) days following her termination of employment
with the Bank, a lump sum payment, in an amount equal to the present value
of the salary that Executive would have earned if she had continued working
for the Bank during the Remaining Unexpired Employment Period at the
highest annual rate of salary achieved during that portion of the
Employment Period which is prior to Executive's termination of employment
with the Bank, where such present value is to be determined using a
discount
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rate equal to the applicable short-term federal rate prescribed under
section 1274(d) of the Internal Revenue Code of 1986 ("Code"), compounded
using the compounding period corresponding to the Bank's regular payroll
periods for its officers, such lump sum to be paid in lieu of all other
payments of salary provided for under this Agreement in respect of the
period following any such termination.
The Bank and the Executive each hereby stipulate that the damages which may
be incurred by Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 9(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to Executive's efforts, if any, to
mitigate damages. The Bank and the Executive further agree that the Bank may
condition the payments and benefits (if any) due under sections 9(b)(iii) and
(iv) on the receipt of Executive's resignation from any and all positions which
she holds as an officer, director or committee member with respect to the Bank,
RFS Bancorp, Revere Bancorp, M.H.C., or any subsidiary or affiliate of any of
them.
SECTION 10. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
In the event that the Executive's employment with the Bank shall terminate
during the Employment Period on account of:
(a) the discharge of the Executive for "cause," which, for purposes of this
Agreement shall mean personal dishonesty, incompetence, willful misconduct,
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
any material breach of this Agreement, in each case as measured against
standards generally prevailing at the relevant time in the savings and community
banking industry.
(b) Executive's voluntary resignation from employment with the Company for
reasons other than those specified in section 9(a)(i);
(c) Executive's death; or
(d) a determination that Executive is eligible for long-term disability
benefits under the Bank's long-term disability insurance program or, if there is
no such program, under the federal Social Security Act;
then, the Bank shall have no further obligations under this Agreement, other
than the payment to Executive (or, in the event of her death, to her estate) of
the portion, if any, of the salary earned by the Executive through the date of
her termination of employment with the Bank which remains unpaid as of such date
and the provision of such other benefits, if any, to which she is entitled as a
former employee under the employee benefit plans and programs and compensation
plans and programs maintained by, or covering employees of, the Bank.
(e) For purposes of section 10(a), no act or failure to act, on the part of
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith or
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without reasonable belief that Executive's action or omission was in the best
interests of the Bank and its affiliates. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or based upon
the written advice of counsel for the Bank shall be conclusively presumed to be
done, or omitted to be done, by Executive in good faith and in the best
interests of the Bank. The cessation of employment of Executive shall not be
deemed to be for "cause" within the meaning of section 10(a) unless and until
there shall have been delivered to Executive a copy of a resolution duly adopted
by the affirmative vote of three-fourths of the non-employee members of the
Board at a meeting of the Board called and held for such purpose, finding that,
in the good faith opinion of the Board, Executive is guilty of the conduct
described in section 10(a) above, and specifying the particulars thereof in
detail.
SECTION 11. TERMINATION UPON OR FOLLOWING A CHANGE OF CONTROL.
(a) A Change of Control of the Bank ("Change of Control") shall be deemed
to have occurred upon the happening of any of the following events:
(i) approval by the stockholders of the Bank of a transaction that
would result in the reorganization, merger or consolidation of the Bank,
respectively, with one or more other persons, other than a transaction
following which:
(A) at least 51% of the equity ownership interests of the entity
resulting from such transaction are beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended "Exchange Act") in substantially the same
relative proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the outstanding
equity ownership interests in the Bank; and
(B) at least 51% of the securities entitled to vote generally in
the election of directors of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) in substantially the same
relative proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the securities
entitled to vote generally in the election of directors of the Bank;
(ii) the acquisition of all or substantially all of the assets of the
Bank or beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 25% or more of the outstanding securities of the
Bank entitled to vote generally in the election of directors by any person
or by any persons acting in concert, or approval by the stockholders of the
Bank of any transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Bank, or approval
by the stockholders of the Bank of a plan for such liquidation or
dissolution; or
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(iv) the occurrence of any event if, immediately following such
event, at least 50% of the members of the Board of the Bank do not belong
to any of the following groups:
(A) individuals who were members of the Board of the Bank on the
date of this Agreement; or
(B) individuals who first became members of the Board of the
Bank after the date of this Agreement either:
(I) upon election to serve as a member of the Board of the
Bank by affirmative vote of three-quarters of the members of
such Board, or of a nominating committee thereof, in office at
the time of such first election; or
(II) upon election by the stockholders of the Bank to serve
as a member of the Board of the Bank, but only if nominated for
election by affir mative vote of three-quarters of the members
of the Board, or of a nominating committee thereof, in office at
the time of such first nomination;
PROVIDED, HOWEVER, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies
or consents (within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on behalf of the
Board of the Bank;
In no event, however, shall a Change of Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company, the Bank, or
any affiliate or subsidiary of either of them, by the Company, the Bank, or any
affiliate or subsidiary of either of them, or by any employee benefit plan
maintained by any of them. For purposes of this section 11(a), the term "person"
shall have the meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the
Exchange Act.
(b) In the event of a Change of Control, Executive shall be entitled to the
payments and benefits contemplated by section 9(b) in the event of her
termination employment with the Bank under any of the circumstances described in
section 9(a) of this Agreement or under any of the following circumstances:
(i) resignation, voluntary or otherwise, by the Executive at any time
during the Employment Period and within ninety (90) days following her
demotion, loss of title, office or significant authority or responsibility,
or following any reduction in any element of her package of compensation
and benefits;
(ii) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period and within ninety (90) days following any
relocation of her principal place of employment or any change in working
conditions at such principal place of
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employment which is embarrassing, derogatory or otherwise materially
adverse to the Executive;
(iii) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period following the failure of any successor to
the Bank in the Change of Control to include the Executive in any
compensation or benefit program maintained by it or covering any of its
executive officers, unless the Executive is already covered by a
substantially similar plan of the Bank which is at least as favorable to
her; or
(iv) resignation, voluntary or otherwise, for any reason whatsoever
following the expiration of a transition period of thirty days beginning on
the effective date of the Change of Control (or such longer period, not to
exceed ninety (90) days beginning on the effective date of the Change of
Control, as the Bank or its successor may reasonably request) to facilitate
a transfer of management responsibilities.
SECTION 12. COVENANT NOT TO COMPETE.
In the event of her termination of employment with the Bank prior to the
expiration of the Employment Period, for a period of one (1) year following the
date of her termination of em ployment with the Bank (or, if less, for the
Remaining Unexpired Employment Period), the Executive shall not, without the
written consent of the Bank, become an officer, employee, consultant, director
or trustee of any competitor (as herein defined) if in this capacity she would
be working for the competitor within a town contiguous to where the headquarters
of the Bank are located on the date of the Executive's termination of
employment. For this purpose, a "competitor" is any savings association, savings
and loan association, savings and loan holding company, bank or bank holding
company, or any direct or indirect subsidiary or affiliate of any such entity.
This section 12 shall not apply if the Executive's employment is terminated
without cause or due to death or voluntary resignation as described in section
9(a). If the Executive's employment shall be terminated on account of disability
as provided in section 10(d) of this Agreement, this section 12 shall not apply
if (a) the Executive first offers, by written notice, to accept a similar
position with, or perform similar services for, the Bank on substantially the
same terms and conditions proposed by the competitor and (b) the Bank declines
to accept such offer within ten (10) days after such notice is given.
SECTION 13. CONFIDENTIALITY.
Unless she obtains the prior written consent of the Bank, the Executive
shall keep confidential and shall refrain from using for the benefit of himself,
or any person or entity other than the Bank or any entity which is a subsidiary
of the Bank or of which the Bank is a subsidiary, any material document or
information obtained from the Bank, or from its parent or subsidiaries, in the
course of her employment with any of them concerning their properties,
operations or business (unless such document or information is readily
ascertainable from public or published information or trade sources or has
otherwise been made available to the public through no fault of her own) until
the same ceases to be material (or becomes so ascertainable or available);
PROVIDED, HOWEVER, that nothing in this section 13 shall prevent Executive, with
or without the Bank's consent, from participating in or disclosing documents or
information in connection with any judicial or
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administrative investigation, inquiry or proceeding to the extent that such
participation or disclosure is required under applicable law.
SECTION 14. SOLICITATION.
Executive hereby covenants and agrees that, for a period of one (1) year
following her termination of employment with the Bank, she shall not, without
the written consent of the Bank, either directly or indirectly:
(a) solicit, offer employment to, or take any other action intended, or
that a reasonable person acting in like circumstances would expect, to have the
effect of causing any officer or employee of the Bank or any affiliate, as of
the date of this Agreement, of either of them, to terminate her or her
employment and accept employment or become affiliated with, or provide services
for compensation in any capacity whatsoever to, any savings association,
cooperative bank, credit union, savings and loan association, savings and loan
holding company, bank, bank holding company, or other institution engaged in the
business of accepting deposits and making loans, having its principal place of
business in a town contiguous to where the headquarters of the Bank are located,
as of the date of this Agreement;
(b) provide any information, advice or recommendation with respect to any
such officer or employee of any savings association, cooperative bank, credit
union, savings and loan association, savings and loan holding company, bank,
bank holding company, or other institution engaged in the business of accepting
deposits and making loans, having its principal place of business in a town
contiguous to where the headquarters of the Bank are located, as of the date of
this Agreement, that is intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any officer or
employee of the Bank or any affiliate, as of the date of this Agreement, of
either of them, to terminate her employment and accept employment or become
affiliated with, or provide services for compensation in any capacity whatsoever
to, any savings association, cooperative bank, credit union, savings and loan
association, savings and loan holding company, bank, bank holding company, or
other institution engaged in the business of accepting deposits and making
loans, having its principal place of business in a town contiguous to where the
headquarters of the Bank are located, as of the date of this Agreement; or
(c) solicit, provide any information, advice or recommendation or take any
other action intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any customer of the Bank to
terminate an existing business or commercial relationship with the Bank.
SECTION 15. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of Executive's employment during the term of this Agreement
or thereafter, whether by the Bank or by Executive, shall have no effect on the
rights and obligations of the parties hereto under the Bank's qualified or
non-qualified retirement, pension, savings, thrift, profit-sharing or stock
bonus plans, group life, health (including hospitalization, medical and major
medical), dental, accident and long-term disability insurance plans or such
other employee benefit
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plans or programs, or compensation plans or programs, as may be maintained by,
or cover employees of, the Bank from time to time.
SECTION 16. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon Executive,
her legal representatives and testate or intestate distributees, and the Bank
and its successors and assigns, in cluding any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the assets and business of the Bank may be
sold or otherwise transferred. Failure of the Bank to obtain from any successor
its express written assumption of the Bank's obligations hereunder at least
sixty (60) days in advance of the scheduled effective date of any such
succession shall be deemed a material breach of this Agreement unless cured
within ten (10) days after notice hereof by the Executive to the Bank.
SECTION 17. NOTICES.
Any communication required or permitted to be given under this Agreement,
including any notice, direction, designation, consent, instruction, objection or
waiver, shall be in writing and shall be deemed to have been given at such time
as it is delivered personally, or five (5) days after mailing if mailed, postage
prepaid, by registered or certified mail, return receipt requested, addressed to
such party at the address listed below or at such other address as one such
party may by written notice specify to the other party:
If to Executive:
Ms. Judith E. Tenaglia
54 Norman Road
Melrose, MA 02176
If to the Bank:
Revere Federal Savings Bank
310 Broadway
Revere, Massachusetts 02151
Attention: BOARD OF DIRECTORS -- NON-EMPLOYEE DIRECTORS
WITH A COPY TO:
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, N.W., Ste. 800
Washington, D.C. 20006
Attention: RICHARD A. SCHABERG, ESQ.
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SECTION 18. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Bank shall indemnify, hold harmless and defend Executive against
reasonable costs, including legal fees, incurred by her in connection with or
arising out of any action, suit or proceeding in which she may be involved, as a
result of her efforts, in good faith, to defend or enforce the terms of this
Agreement; PROVIDED, HOWEVER, that Executive shall have substantially prevailed
on the merits pursuant to a judgment, decree or order of a court of competent
jurisdiction or of an arbitrator in an arbitration proceeding. The determination
whether the Executive shall have substantially prevailed on the merits and is
therefore entitled to such indemnification, shall be made by the court or
arbitrator, as applicable. In the event of a settlement pursuant to a settlement
agreement, any indemnification payment under this section 18 shall be made only
after a determination by the members of the Board (other than the Executive and
any other member of the Board to which the Executive is related by blood or
marriage) that the Executive has acted in good faith and that such
indemnification payment is in the best interests of the Bank.
SECTION 19. SEVERABILITY.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
SECTION 20. WAIVER.
Failure to insist upon strict compliance with any of the terms, covenants
or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition. A waiver of any provision of this Agreement must be made in writing,
designated as a waiver, and signed by the party against whom its enforcement is
sought. Any waiver or relinquishment of any right or power hereunder at any one
or more times shall not be deemed a waiver or relinquishment of such right or
power at any other time or times.
SECTION 21. COUNTERPARTS.
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
SECTION 22. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the Commonwealth of
Massachusetts applicable to contracts entered into and to be performed entirely
within the Commonwealth of Massachusetts.
SECTION 23. HEADINGS AND CONSTRUCTION.
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The headings of sections in this Agreement are for convenience of reference
only and are not intended to qualify the meaning of any section. Any reference
to a section number shall refer to a section of this Agreement, unless otherwise
stated.
SECTION 24. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties relating to
the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or rep resentations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
SECTION 25. REQUIRED REGULATORY PROVISIONS.
The following provisions are included for the purposes of complying with
various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the contrary, in no event
shall the aggregate amount of compensation payable to the Executive under
section 9(b) hereof (exclusive of amounts described in section 9(b)(i) or (ii))
exceed the three times the Executive's average annual compensation (within the
meaning of OTS Regulatory Bulletin 27a or any successor thereto) for the last
five consecutive calendar years to end prior to her termination of employment
with the Bank (or for her entire period of employment with the Bank if less than
five calendar years). The compensation payable to the Executive hereunder shall
be further reduced (but not below zero) if such reduction would avoid the
assessment of excise taxes on excess parachute payments (within the meaning of
section 280G of the Code).
(b) Notwithstanding anything herein contained to the contrary, any payments
to the Executive by the Bank, whether pursuant to this Agreement or otherwise,
are subject to and conditioned upon their compliance with section 18(k) of the
Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. Section 1828(k), and any
regulations promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary, if the
Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Bank pursuant to a notice
served under section 8(e)(3) or 8(g)(1) of the FDI Act, 12 U.S.C. Section
1818(e)(3) or 1818(g)(1), the Bank's obligations under this Agreement shall be
suspended as of the date of service of such notice, unless stayed by appropriate
proceedings. If the charges in such notice are dismissed, the Bank, in its
discretion, may (i) pay to the Executive all or part of the compensation
withheld while the Bank's obligations hereunder were suspended and (ii)
reinstate, in whole or in part, any of the obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary, if the
Executive is removed and/or permanently prohibited from participating in the
conduct of the Bank's affairs by an order issued under section 8(e)(4) or
8(g)(1) of the FDI Act, 12 U.S.C. Section 1818(e)(4) or (g)(1), all prospective
obligations of the Bank under this Agreement shall terminate as of the effective
date of the order, but vested rights and obligations of the Bank and the
Executive shall not be affected.
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(e) Notwithstanding anything herein contained to the contrary, if the Bank
is in default (within the meaning of section 3(x)(1) of the FDI Act, 12 U.S.C.
Section 1813(x)(1), all prospective obligations of the Bank under this Agreement
shall terminate as of the date of default, but vested rights and obligations of
the Bank and the Executive shall not be affected.
(f) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Bank hereunder shall be terminated, except to the
extent that a continuation of this Agreement is necessary for the continued
operation of the Bank: (i) by the Director of the OTS or his designee or the
Federal Deposit Insurance Corporation ("FDIC"), at the time the FDIC enters into
an agreement to provide assistance to or on behalf of the Bank under the
authority contained in section 13(c) of the FDI Act, 12 U.S.C. Section 1823(c);
(ii) by the Director of the OTS or his designee at the time such Director or
designee approves a supervisory merger to resolve problems related to the
operation of the Bank or when the Bank is determined by such Director to be in
an unsafe or unsound condition. The vested rights and obligations of the parties
shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
SECTION 26. EFFECTIVE DATE.
This Agreement shall become effective (the "Effective Date") upon the later
of the following two dates: (a) the effective date of the Bank's conversion from
a federally chartered mutual savings bank to a stock form savings bank pursuant
to the Plan of Reorganization or (b) the date the OTS advises the Bank in
writing that it either approves or has no objection to the terms and conditions
of this Agreement. The Bank and the Executive each hereby acknowledge and agree
that the terms of this Agreement shall have no force or effect prior to such
Effective Date.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed and
Executive has hereunto set her hand, all as of the day and year first above
written.
---------------------------------------
JUDITH E. TENAGLIA
ATTEST: REVERE FEDERAL SAVINGS BANK
By
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Secretary By
------------------------------------
NAME:
TITLE:
[Seal]
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COMMONWEALTH OF MASSACHUSETTS )
: SS.:
COUNTY OF SUFFOLK )
On this ________ day of ____________________, 2000, before me
personally came JUDITH E. TENAGLIA, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me duly sworn,
did depose and say that she resides at the address set forth in said instrument,
and that she signed her name to the foregoing instrument.
------------------------------------
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
: SS.:
COUNTY OF SUFFOLK )
On this ________ day of ____________________, 2000, before me
personally came _____________________________, to me known, who, being by me
duly sworn, did depose and say that she resides at
________________________________________________, that she is a member of the
Board of Directors of REVERE FEDERAL SAVINGS BANK, the savings bank described in
and which executed the foregoing instrument; that she knows the seal of said
bank; that the seal affixed to said instrument is such seal; that it was so
affixed by order of the Board of Directors of said bank; and that she signed her
name thereto by like order.
------------------------------------
Notary Public
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