EXHIBIT 10.8
SPECIAL TERMINATION AGREEMENT
This Special Termination Agreement is made this 20th day of August, 2004
by and between Chart Bank, a Cooperative Bank, with its headquarters located in
Waltham, Massachusetts (the "Bank"), and Alfred J. Odoardi (the "Executive"), an
individual presently employed as an officer of the Bank.
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 any one of the following events:
(a) any "person," as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934 (the "Act") (other than the Bank, any of
its direct or indirect subsidiaries, or any trustee, fiduciary or other person
or entity holding securities under any employee benefit plan or trust of the
Bank, any of its direct or indirect subsidiaries or any stockholder who, as of
the date hereof, owns any outstanding shares of stock of the Bank), together
with all "affiliates" and "associates" (as such terms are defined in Rule 12b-2
under the Act) of such person, shall become the "beneficial owner" (as such term
is defined in Rule 13d-3 under the Act), directly or indirectly, of securities
of the Bank representing 50% or more of the combined voting power of the Bank's
then outstanding securities having the right to vote in an election of the
Bank's Board of Directors ("Voting Securities") (in such case other than as a
result of an acquisition of securities directly from the Bank); or
(b) persons who, as of the date hereof, constitute the Bank's Board
of Directors (the "Incumbent Directors") 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, provided
that any person becoming a director of the Bank subsequent to the date hereof
whose election or nomination for election was approved by a vote of at least a
majority of the Incumbent Directors shall, for purposes of this Agreement, be
considered an Incumbent Director; or
(c) consummation of a merger or consolidation of the Bank with any
other corporation or other entity, other than (1) a merger or a consolidation
which would result in the voting securities of the Bank outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than 50% of
the combined voting power of the voting securities of the Bank or such surviving
entity outstanding immediately after such merger or consolidation or (2) a
merger or consolidation effected to implement a recapitalization of the Bank (or
similar transaction) in
which no "person" (as hereinabove defined) acquires more than 50% of the
combined voting power of the Bank's then outstanding securities; or
(d) the stockholders of the Bank approve a plan of complete
liquidation of the Bank or an agreement for the sale or disposition by the Bank
of all or substantially all of the Bank's assets.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed
to have occurred for purposes of the foregoing clause (a), solely as a result of
an acquisition of securities by the Bank which, by reducing the number of shares
of Voting Securities outstanding, increases the proportionate voting power
represented by the Voting Securities beneficially owned by any person to 50% or
more of the combined voting power of all then outstanding Voting Securities;
provided, however, that if any person referred to in the preceding clause shall
thereafter become the beneficial owner of any additional shares of Voting
Securities (other than pursuant to a stock split, stock dividend, or similar
transaction or as a result of an acquisition of securities directly from the
Bank) and immediately thereafter beneficially owns 50% or more of the
outstanding Voting Securities, then a Change in Control shall be deemed to have
occurred for purposes of the foregoing clause (a).
3. Terminating Event. A "Terminating Event" shall mean termination by the
Bank of the employment of the Executive with the Bank for any reason other than
(a) death, (b) disability, or (c) Cause.
Only the following shall constitute "Cause" for such termination.
(i) dishonest statements or acts of the Executive with respect
to the Bank or successor institution;
(ii) the commission by or indictment of the Executive for (A)
a felony or (B) any misdemeanor involving moral turpitude, deceit,
dishonesty or fraud ("indictment," for these purposes, meaning an
indictment, probable cause hearing or any other procedure pursuant to
which an initial determination of probable or reasonable cause with
respect to such offense is made);
(iii) failure to perform to the reasonable satisfaction of the
Board of Directors a substantial portion of the Executive's duties and
responsibilities assigned or delegated under this Agreement, other than as
a result of sickness, accident, disability or similar cause beyond the
control of the Executive, which failure continues, in the reasonable
judgment of the Board of Directors, after written notice given to the
Executive by the Board of Directors;
(iv) gross negligence, willful misconduct or insubordination
of the Executive with respect to the Employer or any successor
institution; or
(v) material breach by the Executive of any of the Executive's
obligations under this Agreement.
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4. Termination Benefits. Subject to the provisions of Section 5 below, in
the event that a Terminating Event occurs after a Change in Control, the Bank
shall provide to the Executive the following termination benefits ("Termination
Benefits"):
(a) continuation of the Executive's base salary at the rate in
effect immediately before the Change in Control or immediately before the
Terminating Event, whichever is higher, for a period of eighteen (18) months
from the date of the Terminating Event;
(b) Continuation of medical benefits at the level in effect on, and
at the same out-of-pocket cost to the Executive as of, the date of such
Terminating Event, for a period of eighteen (18) months; and
(c) full vesting of all unexercisable stock options held by the
Executive on the date of the Terminating Event.
5. Limitation on Termination Benefits.
(a) It is the intention of the Executive and of the Bank that no
payments by the Bank to or for the benefit of the Executive under this Agreement
and/or any other agreement or plan pursuant to which the Executive is entitled
to receive payments or benefits shall be non-deductible to the Bank by reason of
the operation of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code") relating to parachute payments. Accordingly, and notwithstanding
any other provision of this Agreement or any such agreement or plan, if by
reason of the operation of said Section 280G, any such payments exceed the
amount which can be deducted by the Bank in the aggregate, such payments shall
be reduced to the maximum amount which can be deducted by the Bank. To the
extent that payments exceeding such maximum deductible amount have been made to
or for the benefit of the Executive, such excess payments shall be refunded to
the Bank with interest thereon at the applicable Federal Rate determined under
Section 1274(d) of the Code, compounded annually, or at such other rate as may
be required in order that no such payments shall be non-deductible to the Bank
by reason of the operation of said Section 280G. To the extent that there is
more than one method of reducing the payments to bring them within the
limitations of said Section 280G, the Executive shall determine which method
shall be followed, provided that if the Executive fails to make such
determination within 45 days after the Bank has sent him written notice of the
need for such reduction, the Bank may determine the method of such reduction in
its sole discretion.
(b) If any dispute between the Bank and the Executive as to any of
the amounts to be determined under this Section 5, or the method of calculating
such amounts, cannot be resolved by the Bank and the Executive, either the Bank
or the Executive after giving three days' written notice to the other, may refer
the dispute to a firm of independent certified public accountants selected
jointly by the Bank and the Executive. The determination of such firm as to the
amount to be determined under Section 5(a) and the method of calculating such
amounts shall be final and binding on both the Bank and the Executive. The Bank
shall bear the costs of any such determination.
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6. Unauthorized Disclosure.
(a) Confidential Information. The Executive acknowledges that in the
course of his employment with the Bank (and, if applicable, its predecessors),
he has been allowed to become, and will continue to be allowed to become,
acquainted with the Bank's business affairs, information, trade secrets, and
other matters which are of a proprietary or confidential nature, including but
not limited to the Bank's and its affiliates' and predecessors' operations,
business opportunities, price and cost information, finance, customer
information, business plans, various sales techniques, manuals, letters,
notebooks, procedures, reports, products, processes, services, and other
confidential information and knowledge (collectively the "Confidential
Information") concerning the Bank's and its affiliates' and predecessors'
business. The Bank agrees to provide on an ongoing basis such Confidential
Information as the Bank deems necessary or desirable to aid the Executive in the
performance of his duties. The Executive understands and acknowledges that such
Confidential Information is confidential, and he agrees not to disclose such
Confidential Information to anyone outside the Bank except to the extent that
(i) the Executive deems such disclosure or use reasonably necessary or
appropriate in connection with performing his duties on behalf of the Bank; (ii)
the Executive is required by order of a court of competent jurisdiction (by
subpoena or similar process) to disclose or discuss any Confidential
Information, provided that in such case, the Executive shall promptly inform the
Bank of such event, shall cooperate with the Bank in attempting to obtain a
protective order or to otherwise restrict such disclosure, and shall only
disclose Confidential Information to the minimum extent necessary to comply with
any such court order; (iii) such Confidential Information becomes generally
known to and available for use in the Bank's industry (the "Banking Industry"),
other than as a result of any action or inaction by the Executive; or (iv) such
information has been rightfully received by a member of the Banking Industry or
has been published in a form generally available to the Banking Industry prior
to the date the Executive proposes to disclose or use such information. The
Executive further agrees that he will not during employment and/or at any time
thereafter use such Confidential Information in competing, directly or
indirectly, with the Bank. At such time as the Executive shall cease to be
employed by the Bank, he will immediately turn over to the Bank all Confidential
Information, including papers, documents, writings, electronically stored
information, other property, and all copies of them provided to or created by
him during the course of his employment with the Bank.
(b) Heirs, successors, and legal representatives. The foregoing
provisions of this Section 6 shall be binding upon the Executive's heirs,
successors, and legal representatives. The provisions of this Section 6 shall
survive the termination of this Agreement for any reason.
7. Covenant Not to Compete. In consideration for the benefits provided
under the terms of this Agreement and as a means to aid in the performance and
enforcement of the terms of the provisions of Section 6 hereof, the Executive
agrees that:
(a) during the term of the Executive's employment with the Bank and
for a period of eighteen (18) months thereafter, regardless of the reason for
termination of employment, the Executive will not, directly or indirectly, as an
owner, director, principal, agent, officer, employee, partner, consultant,
servant, or otherwise, carry on, operate, manage, control, or become involved in
any manner with any business, operation, corporation, partnership, association,
agency, or other person or entity which is engaged in a business that is
competitive with any of the Bank's products which are produced by the Bank or
any affiliate of the Bank as of the date of the Executive's termination of
employment with the Bank, in any area or territory
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in which the Bank or any affiliate of the Bank conducts operations; provided,
however, that the foregoing shall not prohibit the Executive from owning up to
one percent (1%) of the outstanding stock of a publicly held company engaged in
the banking industry; and
(b) during the term of the Executive's employment with the Bank and
for a period of eighteen (18) months thereafter, regardless of the reason for
termination of employment, the Executive will not directly or indirectly solicit
or induce any present or future employee of the Bank or any affiliate of the
Bank to accept employment with the Executive or with any business, operation,
corporation, partnership, association, agency, or other person or entity with
which the Executive may be associated, and the Executive will not employ or
cause any business, operation, corporation, partnership, association, agency, or
other person or entity with which the Executive may be associated to employ any
present or future employee of the Bank without providing the Bank with ten (10)
days' prior written notice of such proposed employment.
Should the Executive violate any of the provisions of this Section 7, then
in addition to all other rights and remedies available to the Bank at law or in
equity, the duration of this covenant shall automatically be extended for the
period of time from which the Executive began such violation until he
permanently ceases such violation.
8. 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. During the course of his employment with the Bank,
the Executive shall be entitled to receive a monthly car allowance of $500.00.
9. Term. This Agreement shall take effect on the day first above written,
and shall terminate upon the earlier of (a) the termination by the Bank of the
employment of the Executive after a Change in Control because of death,
disability or Cause, or (b) the resignation or termination of the Executive for
any reason.
10. 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.
11. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of the
Executive's employment or the termination of that employment (including, without
limitations, any claims of unlawful employment discrimination whether based on
age or otherwise) shall, to the fullest extent permitted by law, be settled by
arbitration in any forum and form agreed upon by the parties, or in the absence
of such an agreement, under the auspices of the American Arbitration Association
("AAA") in accordance with the Employment Dispute Resolution Rules of the AAA,
including, but not limited to, the rules and procedures applicable to the
selection of arbitrators. Judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. This Section 11 shall be
specifically enforceable. Notwithstanding the foregoing, this Section 11 shall
not preclude either party from pursuing a court action for the sole purpose of
obtaining a temporary restraining order or a preliminary injunction in
circumstances in which such relief is appropriate; provided that any other
relief shall be pursued through an arbitration proceeding pursuant to this
Section 11. In the event that it shall be necessary or desirable for the
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Executive to retain legal counsel and/or incur other costs and expenses in
connection with the Executive's pursuit of any claims 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 pursuit of said claims (including the
Executive's enforcement of any 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 expenses would be unjust. This arbitration provision shall
not be used for matters of the type referred to in Section 5(b), except to
settle the selection of the accounting firm described in said section in the
event that the Bank and the Executive cannot agree on the selection.
12. 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 and obligations
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 person or entity, or transfer all or substantially all of its properties
or assets to any other entity or person. 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
to the Executive under this Agreement, the Bank shall continue such payments to
the Executive's beneficiary designated in writing to the Bank prior to the
Executive's death (or to the Executive's estate, if the Executive fails to make
such designation).
13. 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.
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. 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 offices attention of the Secretary.
16. Entire Agreement. This Agreement is complete, reflects the entire
agreement of the parties with respect to its subject matter, and supersedes all
previous written or oral negotiations, commitments and writings.
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17. 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.
18. Consent to Jurisdiction. To the extent that any court action is
permitted consistent with or to enforce Section 11 of this Agreement, the
parties hereby consent to the jurisdiction of any court of competent
jurisdiction in Massachusetts and the United States District Court for the
District of Massachusetts. Accordingly, with respect to any such court action,
the Executive (a) submits to the personal jurisdiction of such courts; (b)
consents to service of process; and (c) waives any other requirement (whether
imposed by statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process.
19. 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, without giving effect to the conflict of laws principles of such
State. With respect to any disputes concerning federal law, such disputes shall
be determined in accordance with the law as it would be interpreted and applied
by the United States Court of Appeals for the First Circuit.
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.
CHART BANK, A COOPERATIVE BANK
By: _____________________________
Title:
EXECUTIVE
_________________________________
Alfred J. Odoardi
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