EXHIBIT 10.3.19
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") is made as
of the 28th day of October, 2002, by and between MASSBANK, a Massachusetts
savings bank with its main office in Reading, Massachusetts (the "Bank"), and
Donald R. Washburn (the "Executive").
WITNESSETH
WHEREAS, the Bank and the Executive entered into an Employment
Agreement, dated as of February 1, 1993 (the "Employment Agreement");
WHEREAS, the Bank and the Executive entered into an Executive Severance
Agreement, dated as of December 23, 1993 (the "Severance Agreement");
WHEREAS, the Executive participates in the Bank's Deferred Compensation
Program (the "Deferred Compensation Program");
WHEREAS, the parties hereto desire to provide for the Executive's
continued employment by the Bank and to delineate the Executive's and the Bank's
rights and obligations arising in connection therewith, including in the event
of a Change in Control (as defined herein) subject to the amended terms and
conditions set forth herein; and
WHEREAS, the parties hereto intend that this Agreement shall be an
amendment and restatement of the Employment Agreement and the Severance
Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
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 serve in the employ of the Bank on the terms and conditions
hereinafter set forth.
2. Capacity. The Executive shall serve as an officer of the Bank in
such capacity as the Board of Directors may from time to time determine. In such
capacity the Executive shall, subject to the By-laws of the Bank and to the
direction of its President, Board of Directors and other appropriate officers,
have responsibility for such functions and duties as he may be directed from
time to time by the President or other appropriate officer of the Bank.
3. Term. Subject to the applicable provisions herein, the term of
the Executive's employment hereunder shall be for two years from the date
hereof; provided, however, that the term shall be extended automatically by an
additional one day commencing on the first day following the date hereof and on
each subsequent day thereafter, unless either the Executive or the Bank gives
written notice to the other of such party's election not to extend the term of
this Agreement. The last day of the term of the Executive's
employment hereunder, 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 salary equal to his present
salary at the Bank, subject to increase from time to time in the sole discretion
of the Board of Directors upon the recommendation of the Compensation Committee
or the Chief Executive Officer of the Bank. The Executive's salary shall be
payable in periodic installments in accordance with the Bank's usual practices
for its executives.
(b) Regular Benefits. The Executive shall also be entitled to
participate in those medical insurance plans, life insurance plans, disability
income plans, retirement plans, bonus incentive plans and other benefit plans
from time to time in effect generally for executives of the Bank. Such
participation shall be subject to (i) the terms of the applicable plan
documents, (ii) generally applicable policies of the Bank and (iii) the
discretion of the Board of Directors of the Bank or any administrative or other
committee provided for in or contemplated by such plan.
(c) Business Expenses. The Bank shall reimburse the Executive
for all reasonable travel and other business expenses incurred by him in the
performance of his duties and responsibilities, subject to the Bank's usual
practices and policies in connection therewith and to such reasonable
requirements with respect to substantiation and documentation as may from time
to time be specified by the Bank.
(d) Vacation. The Executive shall be entitled to vacation in
accordance with the Bank's usual practices for its executives.
5. Extent of Service. During his employment hereunder, the Executive
shall devote his full business time, best efforts and business judgment, skill
and knowledge to the advancement of the interests of the Bank and to the
discharge of his duties and responsibilities hereunder. The Executive shall
comply at all times with all Bank policies. He shall not engage in any other
business activity, except as may be approved by the President of the Bank or its
Board of Directors; provided, however, that nothing herein shall be construed as
preventing the Executive from:
(a) Investing his assets in a manner not prohibited by Section
9 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;
(b) Serving on the board of directors of any company, subject
to the approval of the Chief Executive Officer of the Bank and the prohibitions
set forth in Section 9 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.
2
6. Termination. Notwithstanding the provisions of Section 3 hereof,
the Executive's employment hereunder may be terminated without any breach of
this Agreement under the following circumstances:
(a) Death. In the event of the Executive's death during the
Executive's employment hereunder, the Executive's employment shall terminate on
the date of his death.
(b) Disability. In the event of the Executive's "disability"
during the Executive's employment hereunder, the Executive's employment may be
terminated by the Bank. For purposes of this Agreement, "disability" shall mean
the Executive's incapacity due to physical or mental illness which has caused
the Executive to be absent from the full-time performance of his duties with the
Bank for a period of six consecutive months if the Bank shall have given the
Executive a notice of termination and, within 30 days after such notice is
given, the Executive shall not have returned to the full-time performance of his
duties.
(c) Termination by the Bank for Cause. The Executive's
employment hereunder may be terminated for "cause" without further liability on
the part of the Bank effective immediately upon a determination of the President
or the Board of Directors that such "cause" exists. For purposes hereof, any one
or more of the following shall constitute "cause" for such termination:
(i) Dishonesty of the Executive with respect to the
Bank or any affiliate thereof;
(ii) Commission by the Executive of a crime punishable
as a felony;
(iii) Failure by the Executive to perform in a
satisfactory manner a substantial portion of his duties and
responsibilities hereunder; or
(iv) Breach by the Executive of any term of this
Agreement, including without limitation Section 9 hereof.
(d) Termination by the Bank Without Cause. The Executive's
employment with the Bank may be terminated without cause at any time by the
Bank.
(e) Termination by the Executive. The Executive's employment
with the Bank may be terminated by Executive at any time, including for Good
Reason following a Change in Control. For purposes of this Agreement, Good
Reason shall mean the occurrence of any of the following events:
(i) A substantial adverse change, not consented to by
the Executive, in the nature or scope of the Executive's title,
responsibilities, authorities, powers, reporting relationship,
functions or duties from the title, responsibilities, authorities,
powers, reporting relationship, functions or duties exercised by the
Executive immediately prior to the Change in Control; or
3
(ii) A reduction in the Executive's annual base salary
as in effect on the date hereof or as the same may be increased from
time to time; or
(iii) The relocation of the Bank's offices at which the
Executive is principally employed immediately prior to the date of a
Change in Control to a location more than 25 miles from such offices,
or the requirement by the Bank for the Executive to be based anywhere
other than the Bank's offices at such location, except for required
travel on the Bank's business to an extent substantially consistent
with the Executive's business travel obligations immediately prior to
the Change in Control; or
(iv) The failure by the Bank to pay to the Executive any
portion of his compensation or to pay to the Executive any portion of
an installment of deferred compensation under any deferred compensation
program of the Bank within 15 days of the date such compensation is due
without prior written consent of the Executive; or
(v) Breach by the Bank of any provision of this
Agreement, the SERP or any other agreement that may exist from time to
time between the Executive and the Bank that provides for the payment
of any compensation or benefits to Executive; or
(vi) The failure by the Bank to obtain and deliver to
the Executive an effective agreement from any successor to assume and
agree to perform this Agreement.
(f) Date of Termination. "Date of Termination" shall mean: (A)
if Executive's employment is terminated by his death, the date of his death; (B)
if Executive's employment is terminated by reason of his disability, 30 days
after the date on which a notice of termination is given, (C) if Executive's
employment is terminated by the Bank without cause, 60 days after the date on
which a notice of termination is given; and (D) if Executive's employment is
terminated for any other reason, the date on which a notice of termination is
given.
7. Compensation Upon Termination.
(a) Termination Due to Death. If Executive's employment
terminates by reason of his death, the Bank shall, within 90 days of death, pay
in a lump sum cash payment to such person as Executive shall designate in a
notice filed with the Bank or, if no such person is designated, to Executive's
estate, Executive's accrued and unpaid salary to the date of his death, plus his
accrued and unpaid incentive compensation, if any. Upon the death of Executive,
all unvested stock options granted to Executive shall immediately vest and
become fully exercisable, and Executive's estate or other legal representatives
shall have one year from the Date of Termination, to exercise all stock options
granted to Executive. All other stock-based grants and awards held by Executive
shall vest upon the death of Executive. For a period of one year following the
Date of Termination, the Bank shall pay such health insurance premiums as may be
necessary to allow Executive's spouse and dependents to receive health insurance
coverage substantially similar to coverage they received prior to the Date of
Termination. In addition to the foregoing, any payments to which Executive's
spouse, beneficiaries, or estate may be entitled under any employee benefit plan
4
shall also be paid in accordance with the terms of such plan or arrangement.
Such payments, in the aggregate, shall fully discharge the Bank's obligations
hereunder.
(b) Disability. In the event of termination pursuant to Section
6(b), the Bank shall, within 90 days of the Date of Termination, pay to the
Executive in a lump sum cash payment Executive's accrued and unpaid salary to
the Date of Termination, plus his accrued and unpaid incentive compensation, if
any. In addition, the Executive shall be entitled to the following benefits,
subject to the Executive signing a general release of claims (other than claims
for the right to receive the payments or benefits set forth in this Section
7(b)) in a form and manner satisfactory to the Bank:
(i) The Executive shall continue to receive his full
salary under Section 4(a) of this Agreement until the earlier of his
death, his becoming eligible for disability income under the Bank's
disability income plan or three years following the Date of
Termination;
(ii) For a period of three years following the Date of
Termination, the Bank shall pay such health insurance premiums as may
be necessary to allow Executive and Executive's spouse and dependents
to receive health insurance coverage substantially similar to coverage
they received immediately prior to the Date of Termination; and
(iii) All unvested stock options granted to Executive
shall immediately vest and become exercisable, and the Executive or his
legal representative shall have one year from the Date of Termination
to exercise all stock options, subject to the provisions of Section
9(c). All other stock-based grants and awards held by Executive shall
immediately vest upon the Date of Termination.
(c) Termination by the Bank for Cause. In the event of
termination pursuant to Section 6(c), the Bank shall, within 90 days of the Date
of Termination, pay to the Executive in a lump sum cash payment Executive's
accrued and unpaid salary to the Date of Termination. Thereafter, the Bank shall
have no further obligation to Executive except as otherwise expressly provided
under this Agreement, provided that any such termination shall not adversely
affect or alter Executive's rights under any employee benefit plan of the Bank
in which Executive, at the Date of Termination, has a vested interest, unless
otherwise provided in such employee benefit plan or any agreement or other
instrument attendant thereto. In addition, all stock options held by Executive
as of the Date of Termination shall immediately terminate and be of no further
force and effect, and all other stock-based grants and awards shall be cancelled
or terminated in accordance with their terms.
(d) Termination by the Bank Without Cause. In the event of
termination pursuant to Section 6(d), the Bank shall, within 90 days of the Date
of Termination, pay to the Executive in a lump sum cash payment Executive's
accrued and unpaid salary to the Date of Termination, plus his accrued and
unpaid incentive compensation, if any. In addition, the Executive shall be
entitled to the following benefits, subject to the Executive signing a general
release of claims (other than claims for the
5
right to receive the payments or benefits set forth in this Section 7(d)) in a
form and manner satisfactory to the Bank:
(i) The Bank shall within 30 days following the Date of
Termination pay Executive in a lump sum cash payment an amount equal to
three times the sum of (A) Executive's current base salary and (B) the
greater of (1) his immediate prior fiscal year's bonus or (2) the
average of the Executive's bonus for the immediate past three fiscal
years;
(ii) Upon the Date of Termination, each unvested stock
option and any other stock-based grants and awards held by Executive
shall immediately vest and become exercisable by the Executive. Subject
to the provisions of Section 9(c), each such stock option may be
exercised by Executive within 180 days after the Date of Termination;
(iii) In addition to any other benefits to which
Executive may be entitled in accordance with the Bank's then existing
severance policies, the Bank shall, for a period of three years
commencing on the Date of Termination, pay such health insurance
premiums as may be necessary to allow Executive and Executive's spouse
and dependents to continue to receive health insurance coverage
substantially similar to coverage they received immediately prior to
the Date of Termination; and
(iv) Except as expressly set forth in this Section 7(d)
or required by applicable law, the Executive shall not be entitled to
any other payments or benefits from the Bank following his termination
without cause.
Notwithstanding the foregoing, the terms of this Section 7(d) shall not apply to
a termination with respect to which Executive is entitled to receive benefits
pursuant to Section 8(c).
(e) Termination by the Executive. In the event of termination
pursuant to Section 6(e), the Bank shall, within 90 days of the Date of
Termination, pay to the Executive in a lump sum cash payment Executive's accrued
and unpaid salary to the Date of Termination. Thereafter, the Bank shall have no
further obligation to Executive except as otherwise expressly provided under
this Agreement, provided that any such termination shall not adversely affect or
alter Executive's rights under any employee benefit plan of the Bank in which
Executive, at the Date of Termination, has a vested interest, unless otherwise
provided in such employee benefit plan or any agreement or other instrument
attendant thereto. In addition, subject to the provisions of Section 9(c), all
vested but unexercised stock options held by Executive as of the Date of
Termination must be exercised by Executive within three months following the
Date of Termination or by the end of the option term, if earlier. All other
stock-based grants and awards held by Executive shall vest or be canceled upon
the Date of Termination in accordance with their terms. Notwithstanding the
foregoing, the terms of this Section 7(e) shall not apply to a termination with
respect to which Executive is entitled to receive benefits pursuant to Section
8(c).
6
8. Certain Change in Control Payments.
(a) Purpose. The provisions of this Section 8 shall apply if
the Date of Termination is within 24 months after the first event constituting a
Change in Control. The provisions of this Section 8 shall terminate and be of no
further force or effect beginning on the second anniversary of a Change in
Control.
(b) A "Change in Control" shall be deemed to have occurred in
any one of the following events:
(i) Any "person" (as such term is used in Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934 (the "Act"))
becomes a "beneficial owner" (as such term is defined in Rule 13d-3
promulgated under the Act) (other than MASSBANK Corp. ("the Company"),
any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company), directly
or indirectly, of securities of the Company representing fifty percent
(50%) or more of the combined voting power of the Company's then
outstanding securities;
(ii) Persons who, as of October 1, 2002, constituted the
Company's Board of Directors (the "Incumbent Board") cease for any
reason, including without limitation as a result of a tender offer,
proxy contest, merger or similar transaction, to constitute at least a
majority of the Board of Directors of the Company, provided that any
person becoming a director of the Company subsequent to October 1, 2002
whose election was approved by at least a majority of the directors
then comprising the Incumbent Board shall, for purposes of this
Agreement, be considered a member of the Incumbent Board;
(iii) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation or other
entity, other than (A) a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more
than 60% of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in
which no "person" (as hereinabove defined) acquires more than 50% of
the combined voting power of the Company's then outstanding securities;
or
(iv) The stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets.
(c) Severance Payment. In the event within 24 months after a
Change in Control the Executive's employment is terminated by the Bank without
cause (pursuant to Section 6(d)) or by the Executive for Good Reason (pursuant
to Section 6(e)), then in lieu of the benefits provided in Sections
7
7(d) and 7(e) above the Executive shall be entitled to the following benefits,
subject to signing by Executive of a general release of claims (other than
claims for the right to receive the payments or benefits set forth in this
Section 8) in a form and manner satisfactory to the Bank:
(i) The Bank shall pay to the Executive an amount equal
to three times the "base amount" (as such term is defined in Section
280G(b)(3) of the Internal Revenue Code of 1986, as amended (the
"Code")) applicable to the Executive, payable in one lump-sum cash
payment no later than 30 days following the Date of Termination (as
such term is defined in Section 6(f)); and
(ii) All unvested stock options and other stock based
awards granted to Executive shall immediately vest and become
exercisable by the Executive. Each such stock option, may be exercised
by Executive within 180 days after the Date of Termination
(iii) In addition to any other benefits to which the
Executive may be entitled in accordance with the Bank's then existing
severance policies, the Bank shall, for a period of three years
commencing on the Date of Terminations, pay such health insurance
premiums as may be necessary to allow Executive and Executive's spouse
and dependents to continue to receive health insurance coverage
substantially similar to coverage they received immediately prior to
the Date of Termination.
(d) Additional Limitation.
(i) Anything in this Agreement to the contrary
notwithstanding, in the event that any compensation, payment or
distribution by the Bank to or for the benefit of Executive, whether
paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise (the "Severance Payments"), would be
subject to the excise tax imposed by Section 4999 of the Code the
following provisions shall apply:
(A) If the Severance Payments, reduced by the sum
of (1) the Excise Tax and (2) the total of the Federal, state,
and local income and employment taxes payable by Executive on the
amount of the Severance Payments which are in excess of the
Threshold Amount (as defined below), are greater than or equal to
the Threshold Amount, Executive shall be entitled to the full
benefits payable under this Agreement.
(B) If the Threshold Amount is less than (x) the
Severance Payments, but greater than (y) the Severance Payments
reduced by the sum of (1) the Excise Tax and (2) the total of the
Federal, state, and local income and employment taxes on the
amount of the Severance Payments which are in excess of the
Threshold Amount, then the benefits payable under this Agreement
shall be reduced (but not below zero) to the extent necessary so
that the maximum Severance Payments shall not exceed the
Threshold Amount. To the extent that there is more than one
method of reducing the payments to bring them within the
Threshold Amount, Executive shall determine which method shall be
followed; provided that if Executive fails to make such
8
determination within 45 days after the Bank has sent Executive
written notice of the need for such reduction, the Bank may
determine the amount of such reduction in its sole discretion.
For the purposes of this Paragraph 8(d)(iv), "Threshold Amount" shall
mean three times Executive's "base amount" within the meaning of
Section 280G(b)(3) of the Code and the regulations promulgated
thereunder less one dollar ($1.00); and "Excise Tax" shall mean the
excise tax imposed by Section 4999 of the Code, and any interest or
penalties incurred by Executive with respect to such excise tax.
(ii) The determination as to which of the alternative
provisions of Paragraph 8(d)(iv)(A) shall apply to Executive shall be
made by KPMG LLP or any other nationally recognized accounting firm
selected by the Bank (the "Accounting Firm"), which shall provide
detailed supporting calculations both to the Bank and Executive within
15 business days of the Date of Termination, if applicable, or at such
earlier time as is reasonably requested by the Bank or Executive. For
purposes of determining which of the alternative provisions of
Paragraph 8(d)(iv)(A) shall apply, Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income
taxation applicable to individuals for the calendar year in which the
determination is to be made, and state and local income taxes at the
highest marginal rates of individual taxation in the state and locality
of Executive's residence on the Date of Termination, net of the maximum
reduction in federal income taxes which could be obtained from
deduction of such state and local taxes. Any determination by the
Accounting Firm shall be binding upon the Bank and Executive.
(e) Fees and Expenses. The Bank shall pay to the Executive all
reasonable legal and arbitration fees and expenses incurred by Executive in
successfully obtaining or enforcing any right or benefit provided in Section 8
of this Agreement.
9. Non-competition and Confidential Information.
(a) Non-competition. During the term of Executive's employment
with the Bank, and, if Executive's employment with the Bank terminates for any
reason at least 90 days prior to a Change in Control, then during the period
after such termination of employment equal to the longer of (x) one year
following the Date of Termination, and (y) three years following the Date of
Termination if the Executive receives payments or benefits pursuant to Sections
7(b), 7(d) or 8(c) hereof, the Executive will not, directly or indirectly,
whether as owner, partner, shareholder, consultant, agent, employee, co-venturer
or otherwise, or through any person, association or entity, become an employee
of or a consultant to, become a Director of or acquire any ownership interest
in, or carry on, operate, manage, control, or become involved in any manner with
any bank (or any financial institution that engages in consumer banking) that
maintains or operates an office or branch in any city or town where the Bank
maintains or operates an office or branch as of the Date of Termination, nor
will Executive attempt to hire any employee of the Bank, assist (but not
including giving references) in such hiring by any other person, association or
entity, encourage any such employee to terminate his or her relationship with
the Bank, or solicit or encourage any customer of the Bank to terminate or
reduce its relationship with the Bank, or to conduct with any other person,
association or entity any
9
business or activity which such customer conducts or could conduct with the
Bank, whether or not the Bank's relationship with such customer was originally
established in whole or in part by the Executive; provided, however, that the
foregoing shall not prohibit the Executive from owning up to two percent (2%) of
the outstanding stock of a publicly traded company engaged in the banking or
financial services industry.
(b) Confidential Information. The Executive will not at any
time disclose to any other person, association or entity (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, business practices, customer lists,
prospects and opportunities (such as lending relationships, trust relationships,
financial product developments, or possible acquisitions or dispositions of
businesses or facilities) which have been implemented, discussed or considered
by the Bank 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.
(c) Relief. The Executive agrees that the Bank shall be
entitled to injunctive relief for any breach by him of the covenants contained
in Section 9(a) or 9(b). In addition, notwithstanding anything herein or in any
option plan or agreement to the contrary, with respect to any stock option
granted to the Executive by the Bank on or after the date hereof (the "New
Options"), upon any breach by Executive of the covenants contained in Section
9(a) then (i) all New Options shall immediately terminate and be of no further
force and effect, and (ii) with respect to any New Options that were exercised
during the one year period immediately prior to such breach (A) to the extent
Executive owns any shares that he received as a result of such option exercise,
then Executive shall sell to the Bank (and the Bank shall purchase from
Executive) such shares for an aggregate purchase price equal to the lesser of
(x) the aggregate exercise price paid by Executive for such shares, or (y) the
fair market value of such shares, and (B) to the extent Executive no longer owns
any shares that he received as a result of such option exercise, the Executive
shall pay to the Bank an amount of cash equal to the sum of (x) any gain
realized upon the exercise of such option, and (y) any gain realized upon the
sale or transfer of such shares.
(d) Interpretation. 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. As used in this Section
9, the term "Bank" means the Bank and its affiliates.
10. Conflicting 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.
10
11. 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.
12. 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 rules of 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. Judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
13. 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; provided, however, that the Bank may assign its rights under this
Agreement without the consent of the Executive in the event the Bank shall
hereafter effect a reorganization, consolidate with or merge into any other
party, or transfer all or substantially all of its properties or assets to any
other party.
14. Waiver. No waiver of any provision hereof shall be effective
unless made in writing and signed by the waiving party. The failure of any party
to require the performance of any term or obligation of this Agreement, or the
waiver by any 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.
15. 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. The provisions of Sections 8(d), 8(e), 9 and 12
shall survive the termination of this Agreement.
16. 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 President.
17. Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by duly authorized
representatives of the Bank.
18. 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.
19. Prior Agreements. This Agreement shall supercede and replace in
all respects the Employment Agreement and the Severance Agreement. The Deferred
Compensation Program and all other agreements that may exist between
11
the Bank and Executive that provide for the payment of any compensation or
benefits to Executive shall survive.
12
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Bank and the Executive, as of the date first above written.
MASSBANK
By: /s/ Gerard H. Brandi
----------------------------------
Gerard H. Brandi
Title: President & CEO
/s/ Donald R. Washburn
--------------------------------------
Donald R. Washburn
13