FORM OF
REVERE FEDERAL SAVINGS
EXECUTIVE EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
______________, 1998, by and between REVERE FEDERAL SAVINGS, a savings
association organized and operating under the federal laws of the United States
and having an office at 310 Broadway, Revere, Massachusetts 02151 ("Bank") and
JUDITH E. TENAGLIA, an individual residing at __________________, Massachusetts
_____ ("Executive").
W I T N E S S E T H :
WHEREAS, effective as of the Effective Date of this Agreement (as
defined in section 28 hereof) and pursuant to the Plan of Reorganization dated
January 10, 1998 (the "Plan of Reorganization"), the Bank has reorganized from a
federally chartered mutual savings bank to a federally chartered stock savings
bank and has become a wholly-owned subsidiary of RFS Bancorp, Inc. ("RFS
Bancorp"), a mid-tier stock holding company, which is majority owned by Revere
Bancorp, M.H.C., a mutual holding company; and
WHEREAS, the Executive is currently employed by the Bank and the Bank
desires to assure for itself the continued availability of the Executive's
services and the ability of the Executive to perform such services with a
minimum of personal distraction in the event of a pending or threatened Change
of Control (as hereinafter defined); and
WHEREAS, the Executive is willing to continue to serve the Bank on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Bank and the Executive
hereby agree as follows:
SECTION 1. EMPLOYMENT.
The Bank agrees to continue to employ the Executive, and the Executive
hereby agrees to such continued employment, during the period and upon the terms
and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT PERIOD.
(a) The terms and conditions of this Agreement shall be and remain in
effect during the period of employment established under this section 2
("Employment Period"). The Employment Period shall be for an initial term of two
years beginning on the Effective Date of this Agreement. Prior to the first
anniversary of the Effective Date of this Agreement and prior to each
anniversary date thereafter (each, an "Anniversary Date"), the Board of
Directors of the Bank ("Board") shall review the terms of this Agreement and the
Executive's performance of services hereunder and may, in the absence of
objection from the Executive, approve an extension of the Employment Period. In
such event, the Employment Period shall be extended to the second anniversary of
the relevant Anniversary Date. In no event, however, shall any such extension
take effect at a time when the Executive could elect to resign pursuant to
section 9(a)(i) or 11 and claim severance benefits under section 9(b).
(b) For all purposes of this Agreement, the term "Remaining Unexpired
Employment Period" as of any date shall mean the period beginning on such date
and ending on the Anniversary Date on which the Employment Period (as extended
pursuant to section 2(a) of this Agreement) is then scheduled to expire.
(c) Nothing in this Agreement shall be deemed to prohibit the Bank
from terminating the Executive's employment at any time during the Employment
Period with or without notice for any reason; provided, however, that the
relative rights and obligations of the Bank and the Executive in the event of
any such termination shall be determined under this Agreement.
SECTION 3. DUTIES.
Executive shall serve as an executive officer of the Bank and shall
report directly to the President and Chief Executive Officer ("CEO") and the
Executive Vice President and Chief Financial Offier ("CFO") of the Bank. In this
capacity, the Executive shall have such power, authority and responsibility and
shall perform such duties as may be assigned to her from time to time by the
CEO, the CFO or at their direction. Executive shall devote her full business
time and attention (other than during weekends, holidays, approved vacation
periods, and periods of illness or approved leaves of absence) to the business
and affairs of the Bank and shall use her best efforts to advance the interests
of the Bank.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by the Executive
hereunder, the Bank shall pay to her a salary at an initial annual rate
of_______________________________ ($_______), payable in approximately equal
installments in accordance with the Bank's customary payroll practices for
senior officers. The Board of Directors ("Board") shall review the Executive's
annual rate of salary at such times during the Employment Period as it deems
appropriate, but not less frequently than once every twelve months, and may, in
its discretion, approve an increase in the Executive's annual rate of salary. In
addition to salary, the Executive
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may receive other cash compensation from the Bank for services hereunder,
including but not limited to, an annual cash bonus, at such times, in such
amounts and on such terms and conditions as the Board may determine from time to
time.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, the Executive shall be treated as an
employee of the Bank and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental, accident and
long-term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover employees of,
the Bank or RFS Bancorp, in accordance with the terms and conditions of such
employee benefit plans and programs and compensation plans and programs and
consistent with the Bank's customary practices. Nothing paid to the Executive
under any such plan or arrangement will be deemed to be in lieu of other
compensation to which the Executive is entitled under this Agreement.
SECTION 6. INDEMNIFICATION AND INSURANCE.
(a) During the Employment Period and for a period of six (6) years
thereafter, the Bank shall cause the Executive to be covered by and named as an
insured under any policy or contract of insurance obtained by it to insure its
directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Bank or service in
other capacities at the request of the Bank. The coverage provided to Executive
pursuant to this section 6 shall be of the same scope and on the same terms and
conditions as the coverage (if any) provided to other officers or directors of
the Bank.
(b) For as long as the Bank is subject to regulation by the Office of
Thrift Supervision ("OTS"), the Bank shall indemnify the Executive in accordance
with 12 Code of Federal Regulations ("C.F.R") ss.545.121. From and after the
earliest date on which the Bank is not subject to regulation by the OTS, to the
maximum extent permitted under applicable law, during the Employment Period and
for a period of six (6) years thereafter, the Bank shall indemnify Executive
against and hold her harmless from any costs, liabilities, losses and exposures
to the fullest extent and on the most favorable terms and conditions that
similar indemnification is offered to any director or officer of the Bank or any
subsidiary or affiliate thereof. This section 6(b) shall not be applicable where
section 18 is applicable.
SECTION 7. OUTSIDE ACTIVITIES.
Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as she may disclose to and as
may be approved by the Board (which approval shall not be unreasonably
withheld); provided, however, that such service shall not materially interfere
with the performance of her duties under this Agreement. The
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Executive may also engage in personal business and investment activities which
do not materially interfere, and are not inconsistent with, the performance of
her duties and responsibilities hereunder; and, provided, further, however, that
such activities are not prohibited under 12 C.F.R. ss.ss.571.7 or 571.9 or any
code of conduct or investment or securities trading policy established by the
Bank and generally applicable to all similarly situated executives (including,
without limitation, any applicable conflict of interest policy adopted by the
Board as contemplated by 12 C.F.R. ss.571.7). Executive may also serve as an
officer or director of the RFS Bancorp or Revere Bancorp, M.H.C. upon such terms
and conditions as the Bank and the RFS Bancorp or Revere Bancorp, M.H.C. may
mutually agree upon, and such service shall not be deemed to materially
interfere with the Executive's performance of her duties hereunder or otherwise
result in a material breach of this Agreement. The Executive shall not receive
compensation from the Bank for service as an officer or director of either RFS
Bancorp or Revere Bancorp, M.H.C.
SECTION 8. WORKING FACILITIES AND EXPENSES.
Executive's principal place of employment shall be at the Bank's
executive offices at the address first above written, or at such other location
within Suffolk County at which the Bank shall maintain its principal executive
offices, or at such other location as the Bank and the Executive may mutually
agree upon. The Bank shall provide the Executive at her principal place of
employment with working facilities, including secretarial and other support
services, that are commensurate with her responsibilities to the Bank and
necessary or appropriate for the performance of her assigned duties under this
Agreement. The Bank shall reimburse Executive for her ordinary and necessary
business expenses, including, without limitation, all expenses associated with
her business use of an automobile, fees for memberships in such clubs and
organizations as the Executive and the Bank shall mutually agree are necessary
and appropriate for business purposes, and her travel and entertainment expenses
incurred in connection with the performance of her duties under this Agreement,
in each case upon presentation to the Bank of an itemized account of such
expenses in such form as the Bank may reasonably require.
SECTION 9. TERMINATION OF EMPLOYMENT WITH SEVERANCE BENEFITS.
(a) Executive shall be entitled to the severance benefits described in
section 9(b) herein in the event that her employment with the Bank terminates
during the Employment Period under any of the following circumstances:
(i) Executive's voluntary resignation from employment with the Bank
within ninety (90) days following:
(A) the failure of the Board to appoint or re-appoint or elect or
re-elect Executive to the position stated in section 3 of this
Agreement (or a more senior office of the Bank);
(B) in the event that the Executive is a member of the Board, the
failure of the stockholders of the Bank to elect or re-elect Executive
to the Board or the
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failure of the Board (or the nominating committee thereof) to nominate
the Executive for such election or re-election;
(C) the expiration of a thirty (30) day period following the date
on which the Executive gives written notice to the Bank of its
material failure, whether by amendment of the Bank's Organization
Certificate or By-Laws, action of the Board or the Bank's stockholders
or otherwise, to vest in Executive the functions, duties, or
responsibilities prescribed in section 3 of this Agreement, unless,
during such thirty (30) day period, such failure is cured in a manner
determined by Executive, in her discretion, to be satisfactory; or
(D) the expiration of a thirty (30) day period following the date
on which Executive gives written notice to the Bank of its material
breach of any term, condition or covenant contained in this Agreement
(including, without limitation any reduction of Executive's rate of
base salary in effect from time to time and any change in the terms
and conditions of any compensation or benefit program in which
Executive participates which, either individually or together with
other changes, has a material adverse effect on the aggregate value of
her total compensation package), unless, during such thirty (30) day
period, such failure is cured in a manner determined by Executive, in
her discretion, to be satisfactory; or
(ii) subject to the provisions of section 10, the termination of
Executive's employment with the Bank for any other reason not described in
section 9(a) other than a termination of the Executive's employment for
"cause;"
then, the Bank shall provide the benefits and pay to Executive the amounts
described in section 9(b).
(b) Upon the termination of Executive's employment with the Bank under
circumstances described in section 9(a) of this Agreement, the Bank shall pay
and provide to Executive (or, in the event of her death, to her estate):
(i) the portion, if any, of the compensation (including, without
limitation, all items which constitute wages under applicable law and the
payment of which is not otherwise provided for under this section 9(b))
earned by the Executive through the date of the termination of her
employment with the Bank which remains unpaid as of such date, such payment
to be made at the time and in the manner prescribed by law applicable to the
payment of wages but in no event later than thirty (30) days after the
Executive's termination of employment;
(ii) the benefits, if any, to which she is entitled as a former
employee under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the Bank's officers and
employees;
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(iii) continued group life, health (including hospitalization, medical
and major medical), dental, accident and long-term disability insurance
benefits, in addition to that provided pursuant to section 9(b)(ii), and
after taking into account the coverage provided by any subsequent employer,
if and to the extent necessary to provide for Executive, for the Remaining
Unexpired Employment Period, coverage equivalent to the coverage to which
she would have been entitled under such plans (as in effect on the date of
her termination of employment, or, if her termination of employment occurs
after a Change of Control, on the date of such Change of Control, whichever
benefits are greater), if she had continued working for the Company during
the Remaining Unexpired Employment Period at the highest annual rate of
compensation achieved during that portion of the Employment Period which is
prior to Executive's termination of employment with the Bank; and
(iv) within thirty (30) days following her termination of employment
with the Bank, a lump sum payment, in an amount equal to the present value
of the salary that Executive would have earned if she had continued working
for the Bank during the Remaining Unexpired Employment Period at the highest
annual rate of salary achieved during that portion of the Employment Period
which is prior to Executive's termination of employment with the Bank, where
such present value is to be determined using a dis count rate equal to the
applicable short-term federal rate prescribed under section 1274(d) of the
Internal Revenue Code of 1986 ("Code"), compounded using the compounding
period corresponding to the Bank's regular payroll periods for its officers,
such lump sum to be paid in lieu of all other payments of salary provided
for under this Agreement in re spect of the period following any such
termination.
The Bank and the Executive each hereby stipulate that the damages which may
be incurred by Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 9(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to Executive's efforts, if any, to
mitigate damages. The Bank and the Executive further agree that the Bank may
condition the payments and benefits (if any) due under sections 9(b)(iii) and
(iv) on the receipt of Executive's resignation from any and all positions which
she holds as an officer, director or committee member with respect to the Bank,
RFS Bancorp, Revere Bancorp, M.H.C., or any subsidiary or affiliate of any of
them.
SECTION 10. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
In the event that the Executive's employment with the Bank shall
terminate during the Employment Period on account of:
(a) the discharge of the Executive for "cause," which, for purposes of
this Agreement shall mean personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or final cease and desist
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order, or any material breach of this Agreement, in each case as measured
against standards generally prevailing at the relevant time in the savings and
community banking industry.
(b) Executive's voluntary resignation from employment with the Company
for reasons other than those specified in section 9(a)(i);
(c) Executive's death; or
(d) a determination that Executive is eligible for long-term
disability benefits under the Bank's long-term disability insurance program or,
if there is no such program, under the federal Social Security Act;
then, the Bank shall have no further obligations under this Agreement, other
than the payment to Executive (or, in the event of her death, to her estate) of
the portion, if any, of the salary earned by the Executive through the date of
her termination of employment with the Bank which remains unpaid as of such date
and the provision of such other benefits, if any, to which she is entitled as a
former employee under the employee benefit plans and programs and compensation
plans and programs maintained by, or covering employees of, the Bank.
(e) For purposes of section 10(a), no act or failure to act, on the
part of Executive, shall be considered "willful" unless it is done, or omitted
to be done, by Executive in bad faith or without reasonable belief that
Executive's action or omission was in the best interests of the Bank and its
affiliates. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the written advice of counsel
for the Bank shall be conclusively presumed to be done, or omitted to be done,
by Executive in good faith and in the best interests of the Bank. The cessation
of employment of Executive shall not be deemed to be for "cause" within the
meaning of section 10(a) unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative vote of
three-fourths of the non-employee members of the Board at a meeting of the Board
called and held for such purpose, finding that, in the good faith opinion of the
Board, Executive is guilty of the conduct described in section 10(a) above, and
specifying the particulars thereof in detail.
SECTION 11. TERMINATION UPON OR FOLLOWING A CHANGE OF CONTROL.
(a) A Change of Control of the Bank ("Change of Control") shall be
deemed to have occurred upon the happening of any of the following events:
(i) approval by the stockholders of the Bank of a transaction that
would result in the reorganization, merger or consolidation of the Bank,
respectively, with one or more other persons, other than a transaction
following which:
(A) at least 51% of the equity ownership interests of the entity
resulting from such transaction are beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended "Exchange Act") in substantially the same relative
proportions by persons who, immediately
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prior to such transaction, beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) at least 51% of the
outstanding equity ownership interests in the Bank; and
(B) at least 51% of the securities entitled to vote generally in
the election of directors of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) in substantially the same relative
proportions by persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) at least 51% of the securities entitled to vote
generally in the election of directors of the Bank;
(ii) the acquisition of all or substantially all of the assets of the
Bank or beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 25% or more of the outstanding securities of the
Bank entitled to vote generally in the election of directors by any person
or by any persons acting in concert, or approval by the stockholders of the
Bank of any transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Bank, or approval
by the stockholders of the Bank of a plan for such liquidation or
dissolution; or
(iv) the occurrence of any event if, immediately following such event,
at least 50% of the members of the Board of the Bank do not belong to any of
the following groups:
(A) individuals who were members of the Board of the Bank on the
date of this Agreement; or
(B) individuals who first became members of the Board of the Bank
after the date of this Agreement either:
(I) upon election to serve as a member of the Board of the
Bank by affirmative vote of three-quarters of the members of such
Board, or of a nominating committee thereof, in office at the
time of such first election; or
(II) upon election by the stockholders of the Bank to serve
as a member of the Board of the Bank, but only if nominated for
election by affirmative vote of three-quarters of the members of
the Board, or of a nominating committee thereof, in office at the
time of such first nomination;
provided, however, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents (within the
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meaning of Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) other than by or on behalf of the Board of the Bank;
In no event, however, shall a Change of Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company, the Bank, or
any affiliate or subsidiary of either of them, by the Company, the Bank, or any
affiliate or subsidiary of either of them, or by any employee benefit plan
maintained by any of them. For purposes of this section 11(a), the term "person"
shall have the meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the
Exchange Act.
(b) In the event of a Change of Control, Executive shall be entitled
to the payments and benefits contemplated by section 9(b) in the event of her
termination employment with the Bank under any of the circumstances described in
section 9(a) of this Agreement or under any of the following circumstances:
(i) resignation, voluntary or otherwise, by the Executive at any time
during the Employment Period and within ninety (90) days following her
demotion, loss of title, office or significant authority or responsibility,
or following any reduction in any element of her package of compensation and
benefits;
(ii) resignation, voluntary or otherwise, by the Executive at any time
during the Employment Period and within ninety (90) days following any
relocation of her principal place of employment or any change in working
conditions at such principal place of employment which is embarrassing,
derogatory or otherwise materially adverse to the Executive;
(iii) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period following the failure of any successor to
the Bank in the Change of Control to include the Executive in any
compensation or benefit program maintained by it or covering any of its
executive officers, unless the Executive is already covered by a
substantially similar plan of the Bank which is at least as favorable to
her; or
(iv) resignation, voluntary or otherwise, for any reason whatsoever
following the expiration of a transition period of thirty days beginning on
the effective date of the Change of Control (or such longer period, not to
exceed ninety (90) days beginning on the effective date of the Change of
Control, as the Bank or its successor may reasonably request) to facilitate
a transfer of management responsibilities.
SECTION 12. COVENANT NOT TO COMPETE.
In the event of her termination of employment with the Bank prior to
the expiration of the Employment Period, for a period of one (1) year following
the date of her termination of employment with the Bank (or, if less, for the
Remaining Unexpired Employment Period), the Executive shall not, without the
written consent of the Bank, become an officer, employee, consultant, director
or trustee of any competitor (as herein defined) if in this capacity she would
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be working for the competitor within a town contiguous to where the headquarters
of the Bank are located on the date of the Executive's termination of
employment. For this purpose, a "competitor" is any savings association, savings
and loan association, savings and loan holding company, bank or bank holding
company, or any direct or indirect subsidiary or affiliate of any such entity.
This section 12 shall not apply if the Executive's employment is terminated
without cause or due to death or voluntary resignation as described in section
9(a). If the Executive's employment shall be terminated on account of disability
as provided in section 10(d) of this Agreement, this section 12 shall not apply
if (a) the Executive first offers, by written notice, to accept a similar
position with, or perform similar services for, the Bank on substantially the
same terms and conditions proposed by the competitor and (b) the Bank declines
to accept such offer within ten (10) days after such notice is given.
SECTION 13. CONFIDENTIALITY.
Unless she obtains the prior written consent of the Bank, the
Executive shall keep confidential and shall refrain from using for the benefit
of himself, or any person or entity other than the Bank or any entity which is a
subsidiary of the Bank or of which the Bank is a subsidiary, any material
document or information obtained from the Bank, or from its parent or
subsidiaries, in the course of her employment with any of them concerning their
properties, operations or business (unless such document or information is
readily ascertainable from public or published information or trade sources or
has otherwise been made available to the public through no fault of her own)
until the same ceases to be material (or becomes so ascertainable or available);
provided, however, that nothing in this section 13 shall prevent Executive, with
or without the Bank's consent, from participating in or disclosing documents or
information in connection with any judicial or administrative investigation,
inquiry or proceeding to the extent that such participation or disclosure is
required under applicable law.
SECTION 14. SOLICITATION.
Executive hereby covenants and agrees that, for a period of one (1)
year following her termination of employment with the Bank, she shall not,
without the written consent of the Bank, either directly or indirectly:
(a) solicit, offer employment to, or take any other action intended,
or that a reasonable person acting in like circumstances would expect, to have
the effect of causing any officer or employee of the Bank or any affiliate, as
of the date of this Agreement, of either of them, to terminate her or her
employment and accept employment or become affiliated with, or provide services
for compensation in any capacity whatsoever to, any savings association,
cooperative bank, credit union, savings and loan association, savings and loan
holding company, bank, bank holding company, or other institution engaged in the
business of accepting deposits and making loans, having its principal place of
business in a town contiguous to where the headquarters of the Bank are located,
as of the date of this Agreement;
(b) provide any information, advice or recommendation with respect to
any such officer or employee of any savings association, cooperative bank,
credit union, savings and loan
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association, savings and loan holding company, bank, bank holding company, or
other institution engaged in the business of accepting deposits and making
loans, having its principal place of business in a town contiguous to where the
headquarters of the Bank are located, as of the date of this Agreement, that is
intended, or that a reasonable person acting in like circumstances would expect,
to have the effect of causing any officer or employee of the Bank or any
affiliate, as of the date of this Agreement, of either of them, to terminate her
employment and accept employment or become affiliated with, or provide services
for compensation in any capacity whatsoever to, any savings association,
cooperative bank, credit union, savings and loan association, savings and loan
holding company, bank, bank holding company, or other institution engaged in the
business of accepting deposits and making loans, having its principal place of
business in a town contiguous to where the headquarters of the Bank are located,
as of the date of this Agreement; or
(c) solicit, provide any information, advice or recommendation or take
any other action intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any customer of the
Bank to terminate an existing business or commercial relationship with the Bank.
SECTION 15. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of Executive's employment during the term of this
Agreement or thereafter, whether by the Bank or by Executive, shall have no
effect on the rights and obligations of the parties hereto under the Bank's
qualified or non-qualified retirement, pension, savings, thrift, profit-sharing
or stock bonus plans, group life, health (including hospitalization, medical and
major medical), dental, accident and long-term disability insurance plans or
such other employee benefit plans or programs, or compensation plans or
programs, as may be maintained by, or cover employees of, the Bank from time to
time.
SECTION 16. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon
Executive, her legal representatives and testate or intestate distributees, and
the Bank and its successors and assigns, including any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the assets and business of the Bank may be
sold or otherwise transferred. Failure of the Bank to obtain from any successor
its express written assumption of the Bank's obligations hereunder at least
sixty (60) days in advance of the scheduled effective date of any such
succession shall be deemed a material breach of this Agreement unless cured
within ten (10) days after notice hereof by the Executive to the Bank.
SECTION 17. NOTICES.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
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requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to Executive:
Ms. Judith E. Tenaglia
----------------------
----------------------
If to the Bank:
Revere Federal Savings
310 Broadway
Revere, Massachusetts 02151
Attention: Board of Directors -- Non-Employee Directors
--------------------------------------------
with a copy to:
Thacher Proffitt & Wood
1500 K Street, N.W., Suite 200
Washington, D.C. 20005
Attention: Richard A. Schaberg, Esq.
------------------------
SECTION 18. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Bank shall indemnify, hold harmless and defend Executive against
reasonable costs, including legal fees, incurred by her in connection with or
arising out of any action, suit or proceeding in which she may be involved, as a
result of her efforts, in good faith, to defend or enforce the terms of this
Agreement; provided, however, that Executive shall have substantially prevailed
on the merits pursuant to a judgment, decree or order of a court of competent
jurisdiction or of an arbitrator in an arbitration proceeding. The determination
whether the Executive shall have substantially prevailed on the merits and is
therefore entitled to such indemnification, shall be made by the court or
arbitrator, as applicable. In the event of a settlement pursuant to a settlement
agreement, any indemnification payment under this section 18 shall be made only
after a determination by the members of the Board (other than the Executive and
any other member of the Board to which the Executive is related by blood or
marriage) that the Executive has acted in good faith and that such
indemnification payment is in the best interests of the Bank.
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SECTION 19. SEVERABILITY.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
SECTION 20. WAIVER.
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 21. COUNTERPARTS.
This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original, and all of which shall constitute one and
the same Agreement.
SECTION 22. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the Commonwealth of
Massachusetts applicable to contracts entered into and to be performed entirely
within the Commonwealth of Massachusetts.
SECTION 23. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
SECTION 24. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or rep resentations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
SECTION 25. REQUIRED REGULATORY PROVISIONS.
The following provisions are included for the purposes of complying
with various laws, rules and regulations applicable to the Bank:
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(a) Notwithstanding anything herein contained to the contrary, in no
event shall the aggregate amount of compensation payable to the Executive under
section 9(b) hereof (exclusive of amounts described in section 9(b)(i) or (ii))
exceed the three times the Executive's average annual compensation (within the
meaning of OTS Regulatory Bulletin 27a or any successor thereto) for the last
five consecutive calendar years to end prior to her termination of employment
with the Bank (or for her entire period of employment with the Bank if less than
five calendar years). The compensation payable to the Executive hereunder shall
be further reduced (but not below zero) if such reduction would avoid the
assessment of excise taxes on excess parachute payments (within the meaning of
section 280G of the Code).
(b) Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Bank, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with section
18(k) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. ss.1828(k),
and any regulations promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary, if the
Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Bank pursuant to a notice
served under section 8(e)(3) or 8(g)(1) of the FDI Act, 12 U.S.C. ss.1818(e)(3)
or 1818(g)(1), the Bank's obligations under this Agreement shall be suspended as
of the date of service of such notice, unless stayed by appropriate proceedings.
If the charges in such notice are dismissed, the Bank, in its discretion, may
(i) pay to the Executive all or part of the compensation withheld while the
Bank's obligations hereunder were suspended and (ii) reinstate, in whole or in
part, any of the obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary, if the
Executive is removed and/or permanently prohibited from participating in the
conduct of the Bank's affairs by an order issued under section 8(e)(4) or
8(g)(1) of the FDI Act, 12 U.S.C. ss.1818(e)(4) or (g)(1), all prospective
obligations of the Bank under this Agreement shall terminate as of the effective
date of the order, but vested rights and obligations of the Bank and the
Executive shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if the
Bank is in default (within the meaning of section 3(x)(1) of the FDI Act, 12
U.S.C. ss.1813(x)(1), all prospective obligations of the Bank under this
Agreement shall terminate as of the date of default, but vested rights and
obligations of the Bank and the Executive shall not be affected.
(f) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Bank hereunder shall be terminated, except to the
extent that a continuation of this Agreement is necessary for the continued
operation of the Bank: (i) by the Director of the OTS or his designee or the
Federal Deposit Insurance Corporation ("FDIC"), at the time the FDIC enters into
an agreement to provide assistance to or on behalf of the Bank under the
authority contained in section 13(c) of the FDI Act, 12 U.S.C. ss.1823(c); (ii)
by the Director of the OTS or his designee at the time such Director or designee
approves a supervisory merger to resolve problems related to the operation of
the Bank or when the Bank is determined by such Director
-Page 14 of 16-
to be in an unsafe or unsound condition. The vested rights and obligations of
the parties shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
SECTION 26. EFFECTIVE DATE.
This Agreement shall become effective (the "Effective Date") upon the
later of the following two dates: (a) the effective date of the Bank's
conversion from a federally chartered mutual savings bank to a stock form
savings bank pursuant to the Plan of Reorganization or (b) the date the OTS
advises the Bank in writing that it either approves or has no objection to the
terms and conditions of this Agreement. The Bank and the Executive each hereby
acknowledge and agree that the terms of this Agreement shall have no force or
effect prior to such Effective Date.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed
and Executive has hereunto set her hand, all as of the day and year first above
written.
-----------------------------------
JUDITH E. TENAGLIA
ATTEST: REVERE FEDERAL SAVINGS
By
-------------------------------
Secretary By
---------------------------------
Name:
Title:
[Seal]
-Page 15 of 16-
COMMONWEALTH OF MASSACHUSETTS )
: SS.:
COUNTY OF SUFFOLK )
On this ________ day of ____________________, 1998, before me
personally came JUDITH E. TENAGLIA, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me duly sworn,
did depose and say that she resides at the address set forth in said instrument,
and that she signed her name to the foregoing instrument.
---------------------------------
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
:SS.:
COUNTY OF SUFFOLK )
On this ________ day of ____________________, 1998, before me
personally came _____________________________, to me known, who, being by me
duly sworn, did depose and say that she resides at
________________________________________________, that she is a member of the
Board of Directors of REVERE FEDERAL SAVINGS, the savings bank de scribed in and
which executed the foregoing instrument; that she knows the seal of said bank;
that the seal affixed to said instrument is such seal; that it was so affixed by
order of the Board of Directors of said bank; and that she signed her name
thereto by like order.
---------------------------------
Notary Public
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