EXHIBIT 10.14
MEDFORD BANCORP, INC.
SPECIAL TERMINATION AGREEMENT
AGREEMENT made as of the 24th day of April, 2001 by and between Medford
Savings Bank, (d.b.a. Medford Bank) (the "Bank"), a savings bank with its main
office in Medford, Massachusetts, which Bank is a wholly-owned subsidiary of
Medford Bancorp, Inc. (the "Company") a Massachusetts corporation, and William
L. Marshall of Acton, Massachusetts (the "Executive").
1. Purpose. In order to allow the Executive to consider the prospect of a
Change in Control (as defined in Section 2) in an objective manner and in
consideration of the services 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:
(i) if there has occurred a change in control of either the the
Company or the Bank which the Company would be required to report in
response to Item 1 (or, in the case of the Bank, Item 2) of Form 8K
promulgated under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or, if such regulation is no longer in effect, any
regulations promulgated by the Securities and Exchange Commission,
pursuant to the 1934 Act, which are intended to serve similar purposes;
(ii) when any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the 1934 Act) becomes a "beneficial owner" (as such term is
defined in Rule 13d-3 promulgated under the 1934 Act), directly or
indirectly, of securities of the Bank representing twenty-five percent
(25%) or more of the total number of votes that may be cast for the
election of directors of the Company or the Bank, as the case may be;
(iii) during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who are
Continuing Directors (as hereinafter defined) cease for any reason to
constitute at least a majority of the Board of Directors of the Company or
the Bank. For this purpose, a "Continuing Director" shall mean (a) an
individual who was a director of the Company or the Bank at the beginning
of such period or (b) any new director (other than a director designated
by a person who has entered into an agreement with the Company or the Bank
to effect a transaction described in clause (ii), (iv) or (v) of
this Section 2) whose election by the Board or nomination for election by
the Company's or the Bank's stockholders was approved by a vote of at
least two-thirds(2/3) of the directors of the Company or the Bank, as
appropriate, then still in office who either were directors at the
beginning of such period of whose election or nomination for election was
previously so approved;
(iv) the stockholders of the Company approve a merger or
consolidation of the Company or the Bank with any other corporation or
bank, 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 80% 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 then 30% of the combined
voting power of the Company's then outstanding securities; or
(v) the stockholders of the Company or the Bank approve a plan of
complete liquidation of the Company or the Bank or an agreement for the
sale or disposition by the Company or the Bank of all or substantially all
of the Company's or the Bank's assets.
(vi) Notwithstanding the foregoing, no Change in Control shall be
deemed to occur by virtue of the Bank becoming a subsidiary of the
Company.
3. Terminating Event. A "Terminating Event" shall mean
(a) termination by the Bank of the employment of the Executive with the
Bank for any reason other than (i) death, (ii) deliberate dishonesty of the
Executive with respect to the Bank or the Company or any subsidiary or affiliate
of either, or (iii) conviction of the Executive of a crime involving moral
turpitude, or
(b) resignation of the Executive from the employ of the Bank, while the
Executive is not receiving payments or benefits from the Bank by reason of the
Executive's disability, subsequent to the occurrence of any of the following
events:
(i) a significant change in the nature or scope of the Executive's
responsibilities, authorities, powers, functions or duties from the
responsibilities, authorities, powers, functions or duties exercised by
the Executive immediately prior to the Change in Control; or
(ii) a determination by the Executive that, as a result of a Change
in Control, he is unable to exercise the responsibilities, authorities,
powers, functions or duties exercised by the Executive immediately prior
to such Change in Control; or
(iii) 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
except for across-the-board salary reductions similarly affecting all
management personnel of the Bank and the Company and all management
personnel of any person in control of the Bank and the Company; or
(iv) the failure by the Bank or the Company to pay to the Executive
any portion of his current compensation or to pay to the Executive any
portion of an installment of deferred compensation under any deferred
compensation program of the Bank or the Company within seven (7) days of
the date such compensation is due; or
(v) the failure by the Bank or the Company to continue in effect any
material compensation, incentive, bonus or benefit plan in which the
Executive participates immediately prior to the Change in Control, unless
an equitable arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or the failure by the Bank
or the Company to continue the Executive's participation therein (or in
such substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided and the level
of the Executive's participation relative to other participants, as
existed at the time of the Change in Control; or
(vi) the failure by the Bank or the Company to continue to provide
the Executive with benefits substantially similar to those available to
the Executive under any of the life insurance, medical, health and
accident, or disability plans or any other material benefit plans in which
the Executive was participating at the time of the Change in Control, or
the taking of any action by the Bank or the Company which would directly
or indirectly materially reduce any of such benefits, or the failure by
the Bank to provide the Executive with the number of paid vacation days to
which the Executive is entitled on the basis of years of service with the
Bank in accordance with the Bank's normal vacation policy in effect at the
time of the Change in Control; or
(vii) the failure of the Bank to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement.
4. Severance Payment. In the event a Terminating Event occurs within three
(3) years after a Change in Control, the Bank shall pay to the Executive an
aggregate amount equal to (x) one times the "base amount" (as defined in Section
280 G(b)(3) of the Internal Revenue Code of 1954, as amended (the "Code"))
applicable to the Executive, less (y) One Dollar ($1.00), payable in one
lump-sum payment on the date of termination.
5. Limitation on 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 or any
other agreement or plan pursuant to which he is entitled to receive payments or
benefits shall be non-deductible to the Bank by reason of the operation of
Section 280G of 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 plan, if by reason
of the operation of said Section 280G, any such payments exceed the amount which
can be deducted by the Bank, 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
than 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 forty-five 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 partner in the Boston office of a firm of independent certified
public accountants selected jointly by the Bank and the Executive. The
determination of such partner 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.
6. 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.
7. Term. This Agreement shall take effect on as of the date hereof and
shall terminate upon the earlier of (a) the termination by the Bank of the
employment of the Executive because of death, deliberate dishonesty of the
Executive with respect to the Bank or any subsidiary or affiliate of either, or
conviction of the Executive of a crime involving moral turpitude, (b) the
resignation or termination of the Executive for any reason prior to a Change in
Control, or (c) the resignation of the Executive after a Change in Control for
any reason other than the occurrence of any of the events enumerated in Section
3(b)(i)-(vii) of this Agreement.
8. 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.
9. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled by arbitration
in accordance with the laws of the Commonwealth of Massachusetts by three
arbitrators, one of whom shall be appointed by the Bank, one by the Executive
and the third by the first two arbitrators. If the first two arbitrators cannot
agree on the appointment of a third arbitrator, then the third arbitrator shall
be appointed by the American Arbitration Association in the City of Boston. Such
arbitration shall be conducted in the City of Boston in accordance with the
rules of the American Arbitration Association, except with respect to the
selection of arbitrators which shall be as provided in this Section 9. Judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. In the event that it shall be necessary or desirable for
the Executive to retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of any or all of the Executive's rights under
this Agreement, the Bank shall pay (or the Executive shall be entitled to
recover from the Bank, as the case may be) the Executive's reasonable attorneys'
fees and other reasonable costs and expenses in connection with the enforcement
of said rights (including the enforcement of any 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 provision
shall not apply to Section 5(b), except in the event that the Bank and the
Executive cannot agree on the selection of the accounting partner described in
said Section.
10. Assignment; Prior Agreements. 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 and
without such consent any attempted transfer shall be null and void and of no
effect. This Agreement shall inure to the benefit of and be binding upon the
Bank and the Executive, their respective successors, executors, administrators,
heirs and permitted assigns. In the event of the Executive's death prior to the
completion by the Bank of all payments due him under this Agreement, the Bank
shall continue such payments to the Executive's
beneficiary designated in writing to the Bank prior to his death (or to his
estate, if he fails to make such designation). This Agreement supersedes any
prior agreement covering the subject matter hereof.
11. 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.
12. 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.
13. 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 Board of
Directors.
14. Election of Remedies. An election by the Executive to resign after a
Change in Control under the provisions of this Agreement shall not constitute a
breach by the Executive of any employment agreement between the Bank and the
Executive and shall not be deemed a voluntary termination of employment by the
Executive for the purpose of interpreting the provisions of any of the Bank's
benefit plans, programs or policies. Nothing in this Agreement shall be
construed to limit the rights of the Executive under any employment agreement he
may then have with the Bank; provided, however, that if there is a Terminating
Event under Section 3 hereof, the Executive may elect either to receive the
severance payment provided under Section 4 or such termination benefits as he
may under any such employment agreement, but may not elect to receive both.
15. 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.
16. Governing Law. This is a Massachusetts contract and shall be construed
under and be governed in all respects by the laws of the Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Bank, by its duly authorized officer, and by the Executive, as
of the date first above written.
WITNESS:
/s/ Mary Martel /s/ William L. Marshall
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William L. Marshall
ATTEST: MEDFORD SAVINGS BANK
/s/ Edward J. Gaffey By: /s/ Arthur H. Meehan
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Assistant Clerk Arthur H. Meehan
Title: Chairman, CEO& President
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[Seal]