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Exhibit 10.1
EMPLOYMENT AGREEMENT
This Agreement made as of this April 21, 1989, by and among Paul A. Miller
(the "Employee"), Intrex Financial Services, Inc. ("Intrex") and Lawrence
Savings Bank (the "Bank") shall be effective as of April 21, 1989 (the
"Effective Date").
WHEREAS, the Boards of Directors of Intrex and the Bank recognize the
Employee's potential contribution to the growth and success of Intrex and the
Bank and desire to assure Intrex and the Bank of the Employee's employment in
an executive capacity and to compensate him therefor; and
WHEREAS, the Employee is desirous of being employed by Intrex and the Bank
and of committing himself to serve both Intrex and the Bank on the terms herein
provided;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Position, Responsibilities and Term of Employment.
1.01 Position. The Employee shall serve as President and Chief Executive
Officer of Intrex and the Bank and in such additional management position(s) as
the Boards of Directors of Intrex and the Bank (the "Boards" or, as appropriate,
individually the "Board") shall designate. In this capacity the Employee shall,
subject to the By-Laws of Intrex and the Bank, and to the direction of the
Boards, serve Intrex and the Bank by performing such duties and carrying out
such responsibilities as are normally related, in accordance with the standards
of the banking industry relating to the Employee's position and to the
Employee's level of experience and training.
1.02 Best Efforts Covenant. The Employee will, to the best of his
ability, devote his full professional and business time and best efforts to the
performance of his duties for, and in the business and affairs of, Intrex and
the Bank and any subsidiaries and affiliates of Intrex or the Bank.
1.03 Exclusivity Covenant. While employed by Intrex and the Bank, except
with the written consent of the Boards, the Employee will not undertake or
engage in any other employment, occupation or business enterprise other than a
business enterprise in which the Employee does not actively participate.
Further, while employed by Intrex and the Bank, the Employee agrees not to
acquire, assume or participate in, directly or indirectly, any position,
investment or interest adverse or antagonistic to Intrex or the Bank, its
business or prospects,
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financial or otherwise, or take any action towards any of the foregoing, except
for any investment representing less than 1% of the voting shares of any
publicly-held corporation.
1.04 Initial Term and Extensions. Subject to the provisions of this
Section and Section 3.03, the term of this Agreement shall be for three years
commencing with the Effective Date hereof. On the third anniversary of the
Effective Date, the Agreement shall be automatically extended for an additional
year unless the Employee notifies Intrex and the Bank in writing, or either
Intrex on the Bank notifies the Employee in writing, more than 90 days prior to
the second anniversary of the Effective Date that the Agreement is not to be
extended. Thereafter, the Agreement shall be automatically extended for
additional two-year periods unless the Employee notifies Intrex and the Bank in
writing, or either Intrex or the Bank notifies the Employee in writing, more
than 90 days prior to the date that the Agreement is scheduled to expire that
the Agreement is no longer to be extended.
2. Compensation.
2.01 Base Salary.
(a) Intrex and/or the Bank shall pay to the Employee for the services
to be rendered hereunder a base salary according to the following schedule:
Year of the Agreement Base Salary
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First $200,000
Second 220,000
Third 242,000.
(b) If the Agreement is extended for an additional year following the
third anniversary of the Effective Date pursuant to Section 1.04, the Employee's
base salary for such year shall be at least $250,000. In addition, there shall
be a review for merit by the Boards and the Employee's base salary for such
year may be set at an amount greater than $250,000 if the Boards deem such an
increase to be appropriate to reflect the value of the services of the Employee.
(c) If the Agreement is extended beyond the fourth anniversary of the
Effective Date, there shall be an annual review for merit by the Boards and the
Employee's base salary may be increased if the Boards deem such an increase to
be appropriate to reflect the value of the services of the Employee.
(d) If the Boards increase the Employee's base salary at any time
during the term of this Agreement, the Employee's
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increased annual base salary shall become a floor below which the Employee's
annual base salary shall not fall at any future time during the term of this
Agreement.
(e) The Employee's base salary shall be payable in periodic
installments in accordance with the Bank's usual practice for its senior
executive officers.
2.02 Incentive Compensation. In addition to a base salary, the Employee
shall be entitled to receive payments under the incentive compensation bonus
program(s) (as in effect from time to time) maintained by either, on both,
Intrex or the Bank, if any, in such amounts as are determined by Intrex and the
Bank to be appropriate for senior executive officers of Intrex and the Bank.
2.03 Participation in Benefit Plans.
(a) The Employee shall be entitled to participate in, and receive
benefits under, all employee benefit plans and arrangements maintained by
either, or both, Intrex or the Bank in effect on the Effective Date for as long
as such plans and arrangements may remain in effect (including, but not limited
to, participation in any other pension, profit sharing, stock bonus or employee
stock ownership plan adopted by Intrex and/or the Bank, and all group life,
health, dental, disability and other insurance) or any substitute or additional
plans, policies or arrangements made available in the future to the similarly
situated employees of Intrex and/or the Bank, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans,
policies and arrangements. At the date the Employee begins employment with
Intrex and the Bank and to the extent permitted by the documents governing the
plans, he shall participate in (at the cost and expense of Intrex and/or the
Bank) the group life, health plans, and other health and welfare plans
maintained by Intrex and/or the Bank, notwithstanding any waiting period
otherwise provided for in such plans.
(b) Intrex and/or the Bank shall reimburse the Employee for, or pay
directly, the Employee for his employee contribution portion of his major
medical insurance coverage. Notwithstanding the foregoing, if such
contributions cause any plan to be discriminatory or violate the provisions of
any law or otherwise cause adverse tax consequences to Intrex or the Bank, such
reimbursement or payment shall cease.
(c) Intrex and/or the Bank shall pay all reasonable costs associated
with an annual physical examination for the Employee.
(d) Nothing paid to the Employee under any plan, policy or
arrangement presently in effect or made available in the future
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shall be deemed to be in lieu of other Compensation to the Employee hereunder
as described in this Section 2.
2.04 Vacation Days. The Employee shall be entitled to the number of paid
vacation days and paid holidays in each year as are determined by Intrex and
the Bank from time to time for senior executive officers, provided that the
aggregate annual number of such vacation days and paid holidays shall at no
time fall below the number of days per year to which he was entitled on the
Effective Date.
2.05 Expenses. During the term of his employment hereunder, the Employee
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by him (in accordance with the policies and procedures established by
the Boards for the senior executive officers of Intrex and the Bank) in
performing services hereunder.
2.06 Automobile. During the term of this Agreement, Intrex and/or the
Bank shall provide the Employee with an automobile for business and reasonable
local personal use. The purchase price of the automobile shall not exceed
$50,000 and Intrex and/or the Bank shall pay for all expenses associated with
the automobile to the extent that it is used for the purposes described in the
preceding sentence. In addition, upon the Employee's request, Intrex and/or the
Bank shall provide the Employee with a new automobile (as described in, and for
the purposes specified in, this Section) when the automobile currently provided
to the Employee has been in use for 30 months or has 30,000 miles, whichever
occurs first. If in the future the terms of this Section are deemed by the
Boards to be unreasonable, such terms may be changed by the Boards in their
discretion.
3. Termination.
3.01 Termination by Intrex and the Bank for Other Than Cause.
(a) If during the term of this Agreement Intrex or the Bank terminates
the employment of the Employee and such termination is not for "cause"
(as defined in Section 3.02):
(1) Intrex and/or the Bank shall pay to the Employee an amount
equal to the Employee's monthly base salary (as defined in
Section 2.01 and at the monthly salary rate in effect on the date
of such termination) multiplied by the greater of: (i) 12 months;
or (ii) the number of months remaining in the term of this
Agreement. This amount shall be paid to the Employee in one
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lump sum as soon as practicable, but in no event later than 60
days after the date of such termination.
(2) Intrex and/or the Bank shall also pay the Employee,
throughout the remainder of the term of this Agreement (as
defined in Section 1.04) following the date that the Employee's
employment terminated, such Compensation as is provided to the
Employee pursuant to Section 2.02 (to the extent that incentive
compensation relates to a period during which the Employee was
employed by Intrex or the Bank), Section 2.03 (except where
continuation of benefits cannot be provided as contemplated by
this Section 3.01 by reason of a prohibition in the terms of the
benefit plan) and Section 2.05. For the purposes of determining
the amount of benefits to which the Employee shall continue to be
entitled to pursuant to Section 2.03, the Employee shall be
deemed, throughout the period of his entitlement pursuant to this
Section 3.01, to have continued to have performed services for
Intrex or the Bank at a rate of total compensation equal to the
rate in effect on the date of his termination of employment.
(b) If Intrex or the Bank fails to reappoint (or reelect) the Employee
to the position or positions listed in Section 1.01, fails to comply
with the provisions of Section 2 or engages in any other material
breach of the terms of this Agreement, a termination of the Employee's
employment shall be considered to be a termination of the Employee's
employment by Intrex and the Bank for reasons other than "cause" (as
defined in Section 3.02 below) pursuant to this Section 3.01.
3.02 Termination by Intrex and the Bank for Cause.
(a) Intrex and/or the Bank shall have the right to terminate the
employment of the Employee for cause only after (i) giving written
notice to the Employee setting forth in reasonable detail the nature
of such cause, and (ii) giving the Employee a reasonable and fair
opportunity to respond to such written notice. Effective as of the
date that the employment of the Employee terminates by reason of
cause, this Agreement shall terminate and no further payments of the
Compensation described in Section 2 (except for such remaining
payments of base salary under Section 2.01 relating to periods during
which the Employee was
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employed by Intrex or the Bank, benefits under Section 2.03 which are
required by applicable law to be continued and reimbursement of proper
expenses under Section 2.05) shall be made.
(b) For the purposes of this Section, "cause" shall mean willful or
gross neglect of duties for which the Employee is employed (other than
on account of a medically determinable disability which renders the
Employee incapable of performing such services); committing fraud,
misappropriation or embezzlement in the performance of duties as an
employee of Intrex or the Bank; conviction of a felony involving a
crime of moral turpitude; materially failing to follow the proper
instructions of either Board; or willfully engaging in conduct
materially injurious to the Bank and in violation of the covenants
contained in Sections 1.03 or 5.04.
3.03 Termination Following Change of Control. If there is a "change of
control" (as defined in subsection (a) below) while this Agreement is in
effect, the provisions of this Section 3.03 shall apply and shall continue to
apply for a two-year period following the "change of control" (as defined in
subsection (a) below); the provisions of this Section 3.03 shall continue to
apply regardless of whether the Agreement is terminated. If during the two-year
period following a "change of control" (as defined in subsection (a) below) the
Employee's employment is terminated by the Employee following the occurrence of
any of the events listed in subsection (b) below, the Employee shall receive
such compensation as is provided to the Employee pursuant to subsection (c)
below. Similarly, if the Employee's employment is terminated without "cause"
(as defined in Section 3.02 above) by Intrex or the Bank during the two-year
period following the "change of control" (as defined in subsection (a) below),
the Employee shall receive such compensation as is provided to the Employee
pursuant to subsection (c) below.
(a) For the purposes of this Section 3.03, "change of control" shall
mean the occurrence of one or more of the following three events:
(1) after the Effective Date, any "person" (as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than Intrex or the Bank, becomes a beneficial owner (as such
term is defined in Rule 13d-3 as promulgated under the Securities Exchange Act
of 1934, as amended) directly or indirectly of securities representing 25% or
more of the total number of votes that may be cast for the election of
directors of either Intrex or the Bank and two-thirds of the directors of the
Boards, or the
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appropriate Board, have not consented to such event prior to its occurrence or
within 60 days thereafter, provided that if the consent occurs after the event,
it shall only be valid for the purposes of this paragraph (1) if a majority of
the consenting Board or Boards are comprised of directors of either, or both,
Intrex and the Bank, as appropriate, who were directors of either, or both,
Intrex or the Bank, as appropriate, immediately prior to the event;
(2) within two years after a merger, consolidation or sale of assets
(other than in the ordinary course of business of Intrex or the Bank, as
appropriate), involving Intrex or the Bank, or a contested election of a
director of either, or both, Intrex or the Bank, as appropriate, or any
combination of the foregoing, the individuals who were directors of Intrex or
the Bank immediately prior thereto shall cease to constitute a majority of the
respective Boards;
(3) within two years after a tender offer or exchange offer for
voting securities of Intrex or the Bank (other than by Intrex or the Bank, as
appropriate), the individuals who were directors of Intrex or the Bank, as
appropriate, immediately prior thereto shall cease to constitute a majority of
the appropriate Board or the Boards.
(b) The events referred to in this Section 3.03 shall be as follows:
(1) a reduction of the Employee's annual Compensation (as described
in Section 2 above) other than a reduction which is based on the financial
performance of Intrex and/or the Bank and is similar to the reduction made to
the compensation provided to each other senior executive officer of Intrex
and/or the Bank, provided that such reduction does not exceed 25%;
(2) in the judgment of the Employee (such judgment being exercised in
good faith), a significant change in the Employee's responsibilities and/or
duties which constitutes, when compared to the Employee's responsibilities
and/or duties before the "change of control" (as defined in subsection (a)
above), a demotion;
(3) a loss of title or office;
(4) an increase in Compensation for the Employee following a "change
of control" that, when compared to the increases in Compensation received in
the prior three years, is a lower dollar amount or percentage of increase,
except that such reduction in increases in Compensation shall not be considered
an "event" for purposes of this subsection (b) if such reduction in increases
is based on the financial performance of
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Intrex and/or the Bank and is similar to the reduction in increases in
compensation provided to other senior executive officers of Intrex or the Bank;
or
(5) a requirement that the Employee relocate to a location that
is more than 25 miles from the main office of Intrex and the Bank immediately
prior to the "change in control".
(c) If the Employee becomes entitled to receive compensation pursuant
to this Section 3.03, he shall receive a lump-sum payment from the Bank within
60 days of the termination of his employment. Such lump-sum payment shall equal
three times of the Employee's "base amount" (as defined in Section 280G(b)(3) of
the Internal Revenue Code of 1986, as amended (the "Code")), provided that the
Boards shall have full power, without the prior consent of the Employee, to
reduce the amount of the lump-sum payment payable pursuant to this Section but
only to the extent necessary to ensure that such lump-sum payment is not subject
to tax pursuant to Section 4999 of the Code.
(d) If the Employee's termination of employment is covered by both
Section 3.01 and this Section 3.03, the Employee shall receive the greater of:
(1) the compensation described in Section 3.01 net of the amount
of tax imposed on such compensation under Section 4999 of the Code; and
(2) the compensation described in subsection (c) above.
3.04 Termination by Death or Disability. If the Employee dies or becomes
disabled (within the meaning of Section 72(m)(7) of the Code), this Agreement
shall terminate and the Employee shall then be entitled to such compensation
described in Section 2 that relates to the period that he performed services
for Intrex or the Bank plus all applicable benefits to which the Employee is
entitled under employee benefit plans maintained by Intrex or the Bank,
incentive compensation or bonus plans, other benefit plans or programs
maintained by Intrex or the Bank and all such other benefits from employment
policies and practices of Intrex and the Bank.
4. Assignment.
This Agreement and the rights and obligations of the parties hereto shall
bind and inure to the benefit of each of the parties hereto and shall also bind
and inure to the benefit of any successor or successors of Intrex or the Bank
by reorganization, merger or consolidation and any assignee or all or
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substantially all of business and properties of Intrex or the Bank, but, except
as to any such successor or assignee of Intrex or the Bank, neither this
Agreement nor any rights or benefits hereunder may be assigned by Intrex, the
Bank or the Employee.
5. Miscellaneous.
5.01 Governing Law. This Agreement shall be construed in accordance with
and governed for all purposes by the laws of The Commonwealth of Massachusetts.
5.02 Interpretation. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
5.03 Notices. Any notice required or permitted to be given hereunder
shall be effective when received and shall be sufficient if in writing and if
personally delivered or sent by prepaid cable, telex or registered air mail,
return receipt requested, to the party to receive such notice.
5.04 Confidential Information. The Employee will not disclose to any
other person or entity (except as required by applicable law or in connection
with the performance of his responsibilities hereunder), or use for his own
benefit, any confidential information of Intrex or the Bank obtained by him
incident to his employment with Intrex or the Bank. The term "confidential
information" includes, without limitation, financial information, business
plans, prospects and opportunities which have been discussed or considered by
the Boards or management of Intrex or the Bank but does not include any
information which has become public other than on account of the Employee's
failure to comply with the provisions of this Section.
5.05 Amendment and Waiver. This Agreement may not be amended,
supplemented or waived except by a writing signed by the party against which
such amendment or waiver is to be enforced. The waiver by any party of a breach
of any provision of this Agreement shall not operate to, or be construed as a
waiver of, any other breach of that provision nor as a waiver of any breach of
another provision.
5.06 Binding Effect. Subject to the provisions of Section 4 hereof, this
Agreement shall be binding on the successors and assigns of the parties hereto.
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5.07 Survival of Rights and Obligations. All rights and obligations of the
Employee, Intrex or the Bank arising during the term of this Agreement shall
continue to have full force and effect after the termination of this Agreement.
5.08 Counterparts. This Agreement may be executed in three counterparts,
each of which is an original but which shall together constitute one and the
same instrument.
5.09 Legal Expenses. In the event that after a "change of control" the
Employee's employment is terminated for any reason, including "cause", Intrex
and/or the Bank shall pay such amounts as shall become due all of the legal
expenses incurred by the Employee to contest such termination, except that the
Employee shall reimburse Intrex and/or the Bank for all such expenses paid, and
neither Intrex nor the Bank shall be further liable for any further expenses,
should it be finally determined by a court of competent jurisdiction that the
termination was for "cause" or, if the reason for termination was for "cause",
the Employee fails to pursue his remedies to such a final determination.
Execution
Upon execution below by all parties, this Agreement will enter into full
force and effect on the Effective Date.
LAWRENCE SAVINGS BANK PAUL A. MILLER
By: /s/ ARCHIBALD MACLAREN /s/ PAUL A. MILLER
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Archibald MacLaren
Vice Chairman
Witness: /s/ FRED S. TARBOX
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INTREX FINANCIAL SERVICES, INC.
By: /s/ WALLACE BOLTON
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Wallace Bolton
Vice Chairman
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