EXHIBIT (10)(b)(1)
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 2nd day of January, 1991 by and between THE
HIBERNIA SAVINGS BANK, a Massachusetts savings bank with its main office in
Quincy, Massachusetts (the "Bank") and MARK A. OSBORNE of Norwell, Massachusetts
(the "Executive").
WITNESSETH
WHEREAS, the Executive and the Bank are parties to an Employment Agreement
dated September 4, 1986; and
WHEREAS, certain further action has been taken by the Bank with respect to
the Executive's employment with the Bank and the parties wish hereby to enter
into a new Employment Agreement to memorialize the current understandings
between the parties;
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Bank and the Executive agree as follows:
1. Employment. The Bank agrees to employ the Executive and the Executive
agrees to continue in the employ of the Bank on the terms and conditions
hereinafter set forth.
2. Capacity. The Executive shall serve the Bank as its President, Chairman
of the Board of Directors and Chief Executive Officer subject to his election by
the Board of Directors. In this capacity, the Executive shall, subject to the
By-Laws of the Bank and to the direction of the Board of Directors, have
responsibility for the general supervision and management of the Bank's
business.
3. Effective Date and Term. The commencement date (the "Commencement
Date") of this Agreement shall be January 2, 1991. Subject to the provisions of
Section 6, the term of the Executive's employment hereunder shall be for five
(5) years from the Commencement Date; provided, however, that the term shall be
extended automatically for periods of one year commencing on the day prior to
the first anniversary of the Commencement Date and on the day prior to each
subsequent anniversary thereafter, unless, on the date of any such anniversary,
either party gives written notice to the other of such party's election not to
extend the term of this Agreement. The last day of such term, as so extended
from time to time, is herein sometimes referred to as the "Expiration Date".
4. Compensation and Benefits. The regular compensation and benefits
payable to the Executive under this Agreement shall be as follows:
(a) Salary. For all services rendered by the Executive under this
Agreement, the Bank shall pay the Executive a base salary at the rate of
$185,000.00 per year, subject to increase from time to time in accordance
with the usual practice of the Bank with respect to review of compensation
of its senior executives. At such time as the initial base salary is
increased, if ever, such increased salary shall become the base salary
under this
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Agreement. The Executive's salary shall be payable in periodic
installments in accordance with the Bank's usual practice for its senior
executives.
(b) Regular Benefits. The Executive shall also be entitled to
participate in any and all employee benefit plans, medical insurance
plans, life insurance plans, disability income plans, retirement plans,
bonus incentive plans and other benefit plans from time to time in effect
for senior executives of the Bank. Such participation shall be subject to
(i) the terms of the applicable plan documents, (ii) generally applicable
Bank policies and (iii) the discretion of the Board of Directors or any
administrative or other committee provided for in or contemplated by such
plan. In addition, the Executive shall be entitled to receive benefits
which are the same or substantially similar to those which are currently
being provided to the chief executive officers of savings banks within the
Commonwealth of Massachusetts.
(c) Business Expenses. The Bank shall reimburse the Executive for
all reasonable travel, entertainment and other business expenses incurred
by him in the performance of his duties and responsibilities, subject to
such reasonable requirements with respect to substantiation and
documentation as may be specified by the Bank including without limitation
expenses incurred in travelling to and
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from and attending conventions and seminars in connection with the Bank's
business. On those occasions when Executive is accompanied by his spouse,
Bank shall pay all reasonable expenses incurred by Executive on his
spouse's behalf.
(d) Automobile. The Bank will provide the Executive with the full
use of an automobile of a type and style consistent with his status as
President, Chief Executive Officer and Chairman of the Board, such
automobile to be selected by the Executive. All costs of operating,
insuring, maintaining or repairing said automobile (including without
limitation the costs of gasoline and oil) shall be paid by the Bank. The
Executive recognizes that such costs paid by the Bank represent taxable
income to him. The Bank agrees to pay to the Executive, on an annual
basis, an amount approximating the additional tax cost to the Executive
incurred as a result of the inclusion of such costs in the Executive's
taxable income to him. Such amount, to be determined solely by the Bank,
in its reasonable judgment, shall be based upon average marginal rates in
effect for persons receiving like compensation, and the actual tax paid by
the Executive shall not determine the amount so paid.
(e) Vacation. The Executive shall be entitled to not less than four
weeks of vacation per year, to be taken at
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such times and intervals as shall be determined by the Executive with the
approval of the Bank, which approval shall not be unreasonably withheld.
During such vacation time, Executive's compensation shall be paid in full.
(f) Life Insurance Plan. The Executive and the Bank acknowledge
that, in addition to the Executive being a named insured under the Bank's
group life insurance plan, the Executive is covered by a term life
insurance contract in the face amount of $750,000. The Executive shall be
the owner of the policy and, in the event of the death of the Executive
while in the employ of the Bank, the proceeds shall be paid to the
beneficiary specified by the Executive, or if no beneficiary shall have
been so specified, to the estate of the Executive. The Bank shall be
solely responsible for the payment of premiums on such term life insurance
policy for so long as this Agreement is in effect. If, for any reason, the
policy is cancelled, Bank shall procure and pay for a substitute insurance
policy providing similar coverage.
The Executive recognizes that insurance premiums paid by the Bank on
all policies providing insurance in excess of limitations imposed by the
Internal Revenue Code are considered "excess insurance" and represent
taxable income to him. The Bank agrees to pay to the Executive, on an
annual basis, an amount approximating the additional tax
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cost to the Executive incurred as a result of the inclusion of all such
premiums for such excess insurance in the Executive's taxable income. Such
amount, to be determined solely by the Bank, in its reasonable judgment,
shall be based upon average marginal rates in effect for persons receiving
like compensation, and the actual tax paid by the Executive shall not
determine the amount so paid.
At the expiration of the Bank's obligations to Executive under this
Agreement including the payment of all termination benefits, Bank's
obligations to pay the premiums on such term policy shall cease; provided
however, that Bank will insure that such policy or policies provide the
Executive with the option for Executive to assume the premium cost of
continuing such insurance coverage.
(g) Physical Examination. The Executive agrees that he will submit
to an annual physical examination by a physician licensed to practice
medicine in the Commonwealth of Massachusetts chosen by the Executive. The
Bank will pay all expenses of such examination but shall not be entitled
to a report of the examination.
(h) Tax Return Preparation and Tax Planning Services. The Bank will
contract with the Bank's accountants in order to have such accountants
provide all services to Executive as are necessary to prepare the
Executive's state and federal tax returns and to provide such financial
and tax
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planning services as may be reasonably required by the Executive. All
costs of such services shall be paid by the Bank.
The Executive recognizes that such payments paid by the Bank on all
such financial planning and tax services represent taxable income to him.
The Bank agrees to pay to the Executive, on an annual basis, an amount
approximating the additional tax cost to the Executive incurred as a
result of the inclusion of all such financial planning and tax services in
the Executive's taxable income. Such amount, to be determined solely by
the Bank, in its reasonable judgment, shall be based upon average marginal
rates in effect for persons receiving like compensation, and the actual
tax paid by the Executive shall not determine the amount so paid.
(i) Salary Continuation Plan. The Bank agrees that, in the event of
the death of the Executive prior to the termination of this Agreement, in
addition to any other life insurance benefits which are provided for under
this Agreement, the Bank will pay the Executive's named beneficiary the
sum of One Hundred Thousand Dollars ($100,000.00) per year for each of the
four years following the Executive's death. Such amount shall be deemed a
"salary continuation benefit" and shall be paid in equal monthly
installments over the four year period. The Bank may purchase and maintain
a life insurance policy on the
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Executive in an amount sufficient to fund such benefit and, in such event
the Bank shall be the owner and beneficiary of such policy and solely
responsible for the payment of premiums on such policy, but such benefit
shall be due and payable whether or not such insurance is purchased and
whether or not the Bank receives payment on any such policy.
(j) Other Benefits. In addition to paying for all membership and
subscription fees for professional organizations and periodicals, Bank
shall pay for the cost of initiation fee and annual membership dues or
fees on behalf of the Executive at a private golf course of the
Executive's choosing in the Greater Boston Area.
5. Extent of Service. During his employment hereunder, the Executive
shall, subject to the direction and supervision of the Board of Directors,
devote his full business time, best efforts and business judgment, skill and
knowledge to the advancement of the Bank's interests and to the discharge of his
duties and responsibilities hereunder. He shall not engage in any other business
activity, except as may be approved by the Board of Directors; provided,
however, that nothing herein shall be construed as preventing the Executive from
the following:
(a) investing his assets in a manner not prohibited by Section 9(a)
hereof, and in such form or manner as shall not require any material
services on his part in the operations or affairs of the companies or
other entities in which such investments are made;
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(b) serving on the board of directors of any company, subject to the
prohibitions set forth in Section 9(a) and provided that he shall not be
required to render any material services with respect to the operations or
affairs of any such company; or
(c) engaging in religious, charitable or other community or
non-profit activities which do not impair his ability to fulfill his
duties and responsibilities under this Agreement.
6. Termination and Termination Benefits. The Executive's employment may be
terminated under the following circumstances:
(a) Termination by the Bank for Cause. The Executive's employment
hereunder may be terminated without further liability on the part of the
Bank effective immediately by a two-thirds vote of all of the members of
the Board of Directors for cause by written notice to the Executive
setting forth in reasonable detail the nature of such cause. Only the
following shall constitute "cause" for such termination:
(i) Deliberate dishonesty of the Executive with respect to the
Bank or any subsidiary or affiliate thereof;
(ii) Conviction of the Executive of a crime involving moral
turpitude;
(iii) Gross and willful failure to perform a substantial
portion of his duties and responsibilities hereunder, which failure
continues for more than thirty days
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after written notice given to the Executive pursuant to a two-thirds vote
of all of the members of the Board of Directors, such vote to set forth in
reasonable detail the nature of such failure.
(b) Termination by the Executive. The Executive's employment
hereunder may be terminated effective immediately by the Executive by
written notice to the Board of Directors in the event of the following:
(i) Failure of the Board of Directors to elect the Executive
to any of the offices of President, Chairman of the Board, and Chief
Executive Officer of the Bank, or to continue the Executive in such
offices; or
(ii) Failure by the Bank to comply with any of the provisions
of Section 4(a) through (j) inclusive or any material breach by the Bank
of any other provision of this Agreement; or
(iii) If, in the reasonable judgment of the Executive (such
judgment being exercised in good faith), a significant change in the
nature or scope of Executive's responsibilities, power, functions or
duties has occurred which, when compared to the Executive's
responsibilities, powers, functions or duties exercised by the Executive
as of the date of execution of this Agreement, constitutes a demotion
and/or dismissal or if a reasonable determination is made by the Executive
that he is unable to exercise the
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responsibilities, powers, functions or duties exercised by him as of the
date of execution of this Agreement.
(c) Termination by the Bank Without Cause. The Executive's
employment with the Bank may be terminated without cause by a
three-fourths vote of all of the members of the Board of Directors on
written notice to the Executive.
(d) Termination at Age Sixty-Five. The Executive reaches age
sixty-five, except that retirement or termination benefits provided by
this Agreement shall not be prejudiced by this Section.
(e) Certain Termination Benefits. In the event of termination of
this Agreement for any reason other than a termination under Section 6(a)
above, the Executive shall be entitled to the following benefits:
(i) For the period subsequent to the date of termination until
the Expiration Date, the Bank shall continue to pay the Executive the base
salary at the rate in effect on the date of termination, including such
increases as are provided in Section 4(a).
(ii) For the period subsequent to the date of termination
until the Expiration Date, the Executive shall continue to receive all
benefits described in Section 4(b), (d) and (f) above existing on the date
of termination (except for any cash bonus plans which shall be pro-rated
through the date of termination). For purposes of
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application of such benefits, the Executive shall be treated as if he had
remained in the employ of the Bank, with an annual salary at the rate in
effect on the date of termination, with increases as provided in Section
4(a), and service credits will continue to accrue during such period as if
the Executive had remained in the employ of the Bank.
(iii) If, in spite of the provisions of Section 6(e)(ii)
above, benefits or service credits under any benefit plan shall not be
payable or provided under any such plan to the Executive, or to the
Executive's dependents, beneficiaries or estate, because the Executive is
no longer deemed to be an employee of the Bank, the Bank itself shall pay
or provide for payment of such benefits and service credits for such
benefits to the Executive, or to the Executive's dependents, beneficiaries
or estate.
(iv) If, as of the date of termination, the Executive is
eligible to retire under any retirement plan of the Bank in effect at such
time, the Executive will be entitled to receive any and all benefits that
would accrue to retiring employees under such plan for such period of time
after termination as the Executive is receiving termination benefits under
this Agreement.
(f) Notwithstanding any other provision of this Agreement, the
Executive shall be under no obligation whatsoever to seek or accept any
employment after termination
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of employment with the Bank and the Executive's entitlement to all
benefits provided herein shall not be prejudiced in any way by his failure
to seek employment after termination of employment with the Bank.
7. Termination Benefits Buy-Out.
a) In the event of Executive's termination hereunder under
circumstances entitling the Executive to termination benefits under
Section 6(e), at the Executive's sole option, the Executive, at any time
before all termination benefits have been paid, may demand and, upon such
demand, the Bank shall pay the Executive the then current value of the
termination benefits owed to the Executive, such payment to be made within
thirty (30) days of demand.
b) In the event of the Executive's death after the lawful
termination of this Agreement, but prior to the payment of all termination
benefits owed to Executive hereunder, in addition to any other life
insurance benefits provided in this Agreement, the Bank will pay the
Executive's named beneficiary the sum of One Hundred Thousand Dollars
($100,000.00) per year for each of the four years following the
Executive's death. Such amount shall be deemed a "salary continuation
benefit" and shall be paid in equal monthly installments over the four-
year period. The Bank may purchase and maintain a life insurance policy on
the Executive in an amount sufficient to fund such benefit and,
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in such event the Bank shall be the owner and beneficiary of such policy
and solely responsible for the payment of premiums on such policy, but
such benefit shall be due and payable whether or not such insurance is
purchased and whether or not the Bank receives payment on any such policy.
8. Disability. If, due to illness or physical or mental disability, the
Executive shall be unable to perform substantially all of his duties and
responsibilities hereunder, the Board of Directors may designate another
executive to act in his place during the period of such disability.
Notwithstanding any such designation, the Executive shall continue to receive
his full salary and benefits under Section 4 of this Agreement until he becomes
eligible for disability income under the Bank's disability income plan. While
receiving disability income payments under such plan, the Executive shall not
receive any salary under Section 4(a), but shall continue to participate in the
Bank's benefit plans and to receive other benefits as specified in Section 4
until the Expiration Date; provided, however, that in the event that the
disability income payments under the Bank's disability income plan are less than
the Executive's salary at the time of such disability, the Bank shall pay the
Executive an amount equal to the difference between such salary and disability
payments. In the absence of a disability income plan at the time of such
disability, the Bank shall pay the Executive benefits equal to the Executive's
full salary. If
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any question shall arise as to whether during any period the Executive was
disabled so as to be unable to perform substantially all of his duties and
responsibilities hereunder due to physical or mental illness, the Executive may,
and at the request of the Bank will, submit to the Bank a certification, in
reasonable detail, by a physician selected by the Executive or his guardian to
whom the Bank has no reasonable objection as to whether the Executive was so
disabled, and such certification shall for the purposes of this Agreement be
conclusive of the issue. If such question shall arise and the Executive shall
fail to submit such certification, the Bank's determination of such issue shall
be binding on the Executive.
9. Noncompetition and Confidential Information
(a) Noncompetition. During
(i) a period of one year following the date of termination of
the Executive's employment with the Bank by the Executive as a result of
his election not to extend pursuant to Section 3 or by the Bank for cause
pursuant to Section 6(a) hereof, and
(ii) the period during which the Bank continues to provide
benefits to the Executive pursuant to Section 6(e)(i)-(iii) hereof,
the Executive will not, directly or indirectly, whether as owner, partner,
shareholder, consultant, agent, employee, co-venturer or otherwise, or through
any person (as defined in Section 11),
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compete in the Bank's market area (defined as the towns in which the Bank's main
office and branch offices are located and all towns contiguous thereto) with the
banking or any other business conducted by the Bank during the period of his
employment hereunder, nor will he attempt to hire any employee of the Bank,
assist in such hiring by any other person, encourage any such employee to
terminate his or her relationship with the Bank or solicit or encourage any
customer of the Bank to terminate its relationship with the Bank or to conduct
with any other person any business or activity which such customer conducts or
could conduct with the Bank.
(b) Confidential Information. The Executive will not disclose to any
other person (except as required by applicable law or in connection with
the performance of his duties and responsibilities hereunder), or use for
his own benefit or gain, any confidential information of the Bank obtained
by him incident to his employment with the Bank. The term "confidential
information" includes, without limitation, financial information, business
plans, prospects and opportunities (such as lending relationships,
financial product developments, or possible acquisitions or dispositions
of businesses or facilities) which have been discussed or considered by
the Bank's management but does not include any information which has
become part of the public domain by means other than the Executive's
non-observance of his obligations hereunder.
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(c) Relief Interpretation. The Executive agrees that the Bank shall
be entitled to injunctive relief for any breach by him of the covenants
contained in Sections 9(a) or 9(b). In the event that any provision of
this Section 9 shall be determined by any court of competent jurisdiction
to be unenforceable by reason of its being extended over too great a
period of time, too large a geographic area or too great a range of
activities, it shall be interpreted to extend only over the maximum period
of time, geographic area or range of activities as to which it may be
enforceable. For purposes of this Section 9, the term "Bank" shall mean
the Bank and any of its subsidiaries and affiliates.
10. Confliction Agreements. The Executive hereby represents and warrants
that the execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to which he
is a party or is bound, and that he is not now subject to any covenants against
competition or similar covenants which would affect the performance of his
obligations hereunder.
11. Definition of "Person", "Director" and "Board of Directors". For
purposes of this Agreement: the term "Person" shall mean an individual, a
corporation, an association, a partnership, an estate, a trust and any other
entity or organization; and the terms "Director" and "Board of Directors" shall
mean a Director and the Board of Directors, respectively, of the Bank.
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12. Withholding. All payments made by the Bank under this Agreement shall
be net of any tax or other amounts required to be withheld by the Bank under
applicable law.
13. Enforcement Expenses. In the event that the Executive retains legal
counsel and/or incurs other costs and expenses in connection with the
enforcement of any or all of the Executive's rights under this Agreement, the
Bank shall pay (or the Executive shall be entitled to recover from the Bank, as
the case may be) the Executive's reasonable attorneys' fees and other reasonable
costs and expenses in connection with the enforcement of said rights regardless
of whether the Executive prevails on the merits of his claims, so long as such
claims are made in good faith.
14. Assignment; Successors and Assigns, etc. Neither the Bank nor the
Executive may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other
party. This Agreement shall inure to the benefit of and be binding upon the Bank
and the Executive, their respective successors, executors, administrators, heirs
and permitted assigns.
15. Special Termination Agreement. Executive and Bank are parties to a
written Special Termination Agreement dated September 4, 1986 as amended by
Amendment dated as of January 2, 1991. Nothing contained in this Agreement shall
limit the provisions thereof and such Special Termination Agreement is to remain
in full force and effect in accordance with its provisions as from time to time
amended.
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16. Indemnity. Bank shall indemnify, defend, and hold the Executive
harmless for all acts or decisions made by him in good faith while performing
services for the Bank. In addition to and not in lieu of such indemnity, Bank
shall include Executive as an insured under any insurance policy now in force or
hereafter obtained during the term of this Agreement covering the officers and
directors of the Bank. Bank shall pay all expenses including without limitation
reasonable attorneys' fees actually and necessarily incurred by the Executive in
connection with the defense of such acts and decisions, suits or proceedings,
including costs of settlement and/or appeal.
17. Enforceability. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
18. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
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19. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by registered or certified mail, postage prepaid, to the
Executive at the last address the Executive has filed in writing with the Bank
or, in the case of the Bank, at its main office attention of the Clerk.
20. Amendment. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized representative of
the Bank.
21. Governing Law. This is a Massachusetts contract and shall be construed
under and be governed in all respects by the laws of the Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Bank, by its duly authorized officer and by the Executive, as
of the date first above written:
ATTEST: THE HIBERNIA SAVINGS BANK
/s/ [ILLEGIBLE] By: ___________________________
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, Clerk Title: Director
[Seal]
WITNESS:
/s/ [ILLEGIBLE] /s/ Mark A. Osborne
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MARK A. OSBORNE
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