EXHIBIT (10)(b)(2)
SPECIAL TERMINATION AGREEMENT
AGREEMENT made as of the 4th day of September, 1986 by and between
HIBERNIA SAVINGS BANK, a Massachusetts savings bank with its main office in
Boston, Massachusetts (the "Bank") and MARK A. OSBORNE, an individual presently
employed by the Bank in the capacity of President and Chief Executive Officer
(the "Executive").
1. Purpose. In order to allow the Executive to consider the prospect of a
Change in Control (as defined in Section 2) in an objective manner and in
consideration of the services rendered and to be rendered by the Executive to
the Bank and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by the Bank, the Bank is willing to provide,
subject to the terms of this Agreement, certain severance benefits to protect
the Executive from the consequences of a Terminating Event (as defined in
Section 3) occurring subsequent to a Change in Control.
2. Change in Control. A "Change in Control" shall be deemed to have
occurred in either of the following events: (i) if there has occurred a change
in control which the Bank would be required to report in response to Item 5(f)
of the Form for Proxy Statement (Form F-5) prescribed by 12 CFR Section 335.212
promulgated under the Securities Exchange Act of 1934, as amended (the "1934
Act"), or, if such regulation is no longer in effect, any regulations
promulgated by the Federal Deposit
Insurance Corporation or by the Securities and Exchange Commission pursuant to
the 1934 Act which are intended to serve similar purposes or (ii) when any
"person" (as such term is used in Sections 13(d) and 14(d)(2) of the 1934 Act)
becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated
under the 1934 Act), directly or indirectly, of securities of the Bank
representing twenty-five percent or more of the total number of votes that may
be cast for the election of directors of the Bank and, in the case of either (i)
or (ii) above, the Bank's Board of Directors has not consented to such event by
a two-thirds vote of all of the members of the Board of Directors adopted either
prior to such event or within ninety days thereafter, except that, if at the
time such a consent vote is adopted after such event the persons who were
directors of the Bank immediately prior to such event do not constitute a
majority of the Board of Directors of the Bank or of any successor institution,
such vote shall not be deemed to constitute consent for the purposes of this
Agreement. In addition, a Change in Control shall be deemed to have occurred if,
as the result of, or in connection with, any tender or exchange offer, merger or
other business combination, sale of assets or contested election or any
combination of the foregoing transactions, the persons who were directors of the
Bank before such transaction shall cease to constitute a majority of the Board
of Directors of the Bank or of any successor institution. Notwithstanding the
other provisions of
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this Section, the sale of the Bank's stock in connection with its conversion
from mutual to stock form shall not constitute a Change in Control.
3. Terminating Event. A "Terminating Event" shall mean (a) termination by
the Bank of the employment of the Executive with the Bank for any reason other
than (i), death, (ii) deliberate dishonesty of the Executive with respect to the
Bank or any subsidiary or affiliate thereof or (iii) conviction of the Executive
of a crime involving moral turpitude or (b) resignation of the Executive from
the employ of the Bank, while the Executive is not receiving payments or
benefits from the Bank by reason of the Executive's disability, subsequent to
the occurrence of any of the following events:
(i) A significant change in the nature or scope of the Executive's
responsiblities, authorities, powers, functions or duties from the
responsiblities, authorities, powers, functions or duties exercised by the
Executive immediately prior to the Change in Control; or
(ii) A reasonable determination by the Executive that, as a result
of a Change in Control, he is unable to exercise the responsiblities,
authorities, powers, functions or duties exercised by the Executive
immediately prior to such Change in Control; or
(iii) A decrease in the total annual compensation payable by the
Bank to the Executive other than as a result of a decrease in compensation
payable to the Executive and
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to all other executive officers of the Bank on the basis of the Bank's
financial performance.
4. Severance Payment. In the event a Terminating Event occurs within three
years after a Change in Control, the Bank shall pay to the Executive an amount
equal to (3) three times the "base amount" (as defined in Section 280G(b)(3) of
the Internal Revenue Code of 1954, as amended (the "Code)) applicable to the
Executive, less (y) One Dollar ($1.00), payable in one lump sum payment on the
date of termination.
5. Employment Status. This Agreement is not an agreement for the
employment of the Executive and shall confer no rights on the Executive except
as herein expressly provided.
6. Term. Subject to the satisfaction of the conditions set forth in
Sections 15 and 16 hereof, this Agreement shall take effect one day prior to the
effective date of the conversion of the Bank from mutual to stock form of
Massachusetts savings bank, and shall terminate upon the earlier of (a) the
termination by the Bank of the employment of the Executive because of death,
deliberate dishonesty of the Executive with respect to the Bank or any
subsidiary or affiliate thereof or conviction of the Executive of a crime
involving moral turpitude, (b) the resignation or termination of the Executive
for any reason prior to a Change in Control or (c) the resignation of the
Executive after a Change in Control for any reason other than the occurrence of
any of the events enumerated in Section 3(b)(i)-(iii) of this Agreement.
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7. 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.
8. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this agreement or the breach thereof shall be settled by arbitration
in accordance with the laws of the Commonwealth of Massachusetts by three
arbitrators, one of whom shall be appointed by the Bank, one by the Executive
and the third by the first two arbitrators. If the first two arbitrators cannot
agree on the appointment of a third arbitrator, then the third arbitrator shall
be appointed by the American Arbitration Association in the City of Boston. Such
arbitration shall be conducted in the City of Boston in accordance with the
rules of the American Arbitration Association, except with respect to the
selection of arbitrators which shall be as provided in this Section 8. Judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. In the event that it shall be necessary or desirable for
the Executive to retain legal counsel and/or incur 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 (including the enforcement of any
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arbitration award in court) regardless of the final outcome, unless and to
the extent the arbitrators shall determine that under the circumstances
recovery by the Executive of all or a part of any such fees and costs and
expense would be unjust.
9. Assignment. 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.
In the event of the Executive's death prior to the completion by the Bank of all
payments due him under this Agreement, the Bank shall continue such payments to
the Executive's beneficiary designated in writing to the Bank prior to his death
(or to his estate, if he fails to make such designation).
10. Enforceability. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceabable 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.
11. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving
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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.
12. 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 resigtered 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.
13. Election of Remedies. An election by the Executive to resign after a
Change in Control under the provisions of this Agreement shall not constitute a
breach by the Executive of any employment agreement between the Bank and the
Executive and shall not be deemed a voluntary termination of employment by the
Executive for the purpose of interpreting the provisions of any of the Bank's
benefit plans, programs or policies. Nothing in this Agreement shall be
construed to limit the rights of the Executive under any employment agreement
that he may then have with the Bank.
14. 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.
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15. Ratification of Agreement. This Agreement shall be submitted to the
full Board of Directors of the Bank for ratification at the first meeting of the
Board of Directors subsequent to the Bank's conversion.
16. 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: [Bank]
/s/ [ILLEGIBLE] By: /s/ Thomasine Kennedy
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Clerk Title: Treasurer
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[Seal]
WITNESS:
/s/ Judith K. Wyman /s/ Mark A. Osborne
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MARK A. OSBORNE
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