Exhibit 10.8
CHANGE IN CONTROL AGREEMENT
AGREEMENT made and entered into as of this 31st day of March, 2004 by and
between The First National Bank of Ipswich, a national banking association
having its principal place of business in Ipswich, Massachusetts ("Bank"), and
John P. DiIorio, Jr. of Andover, Massachusetts (the "Employee").
WITNESSETH THAT:
1. Salary; Benefits. Employee's annual base salary and the benefits to
which he is entitled are described on Exhibit A attached hereto.
2. Payments Upon Termination After Change in Control. If the employment of
the Employee is terminated for any reason within twelve (12) months following a
Change in Control (as hereinafter defined) other than (i) for Cause (as defined
below), or (ii) on account of Employee's death, disability or retirement from
the Bank, then in any such case the Bank shall continue to pay to the Employee,
or to his personal representatives in case of his death, the Employee's base
salary in effect as of the date of such termination (which shall not include any
bonus) for the twelve (12) month period following the date of such termination .
A "Change in Control" shall occur if the Raymond Family shall cease
to own, in the aggregate, at least 51% of the common stock of First Ipswich
Bancorp ("Bancorp") or, if applicable, at least 51% of the common stock of the
surviving entity in any merger, consolidation or reorganization to which Bancorp
is a party, the entity to which all or substantially all of the assets of the
Bank or Bancorp are sold, or the entity which assumes all or substantially all
of the deposits of the Bank. The "Raymond Family" shall mean Neil St. John
Raymond, his spouse, issue and their spouses, and trusts of which any of the
described persons is a beneficiary, which shall include trusts or custodianship
arrangements under retirement plans, and custodian, nominee, agency or similar
arrangements created by or which benefit any of the described persons.
Termination of the Employee's employment shall be for "Cause" if:
(i) The Employee is convicted by a court of competent jurisdiction
of any criminal offense involving dishonesty or breach of trust;
(ii) The Employee shall commit an act of fraud;
(iii) The Employee refuses to perform the duties reasonably assigned
to him by the Board of Directors of the Bank, which failure or breach continues
for more than ten (10) days after written notice given to the Employee, such
notice to set forth in reasonable detail the nature of such refusal; or
(iv) The Employee engages in willful misconduct which is materially
injurious to the Bank or its affiliates, monetarily or otherwise.
Notwithstanding any other term of this Agreement, the Employee
agrees and acknowledges that the payments provided for in this Section 2 shall
satisfy in full any and all obligations and liability of the Bank arising as a
result of or in connection with the Employee's involuntary termination (other
than for Cause). Notwithstanding anything in this Agreement to the contrary,
nothing in this Agreement shall obligate the Bank to make any payments that are
otherwise prohibited by the laws and regulations applicable to national banks,
including without limitation 12 C.F.R. Part 359; provided, however, that the
Employee shall be entitled to payment to the extent and in the amount not
otherwise prohibited by 12 C.F.R. Part 359.
3. Non-competition. At all times while the Employee is employed by the
Bank, and for a period of one (1) year thereafter, or the period (if any) during
which the Bank is paying the Employee pursuant to Section 2 hereof, whichever is
longer, the Employee shall not, directly or indirectly, as an employee of any
person or entity (whether or not engaged in business for profit), individual
proprietor, partner, stockholder, director, officer, joint venture, investor,
lender or in any other capacity whatever (otherwise than as holder of less than
ten (10) percent of any securities publicly traded in the market) compete with
Bank or any subsidiary or affiliate of Bank in any city or town or in which the
Bank or such subsidiary or affiliate operates, or within any contiguous city or
town.
4. No Solicitation of Employees. At all times while Employee is employed
by the Bank, and for a period of one (1) year thereafter, or the period (if any)
during which the Bank is paying the Employee pursuant to Section 2 hereof,
whichever is longer, the Employee shall not, directly or indirectly, employ,
attempt to employ, recruit or otherwise solicit, induce or influence any
employee of the Bank or any subsidiary or affiliate of Bank to leave his or her
employment.
5. No Disclosure of Information. The Employee shall not at any time
divulge, use, furnish, disclose or make accessible to anyone other than the
Bank, or as applicable its subsidiaries and affiliates, any knowledge or
information with respect to confidential or secret data, procedures or
techniques of the Bank, its subsidiaries or affiliates, provided, however, that
nothing in this Section 5
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shall prevent the disclosure by the Employee of any such information which at
any time comes in to the public domain other than as a result of the violation
of the terms of this Section 5 by the Employee or which is otherwise lawfully
acquired by the Employee.
6. Notices. Notices under this Agreement shall be in writing and shall be
mailed by registered or certified mail, effective upon receipt, addressed as
follows:
(i) To the Bank:
The First National Bank of Ipswich
31 Market Street
Ipswich, Massachusetts 01938
Attn: Donald P. Gill, President
(ii) To the Employee:
John P. DiIorio, Jr.
14 Tilton Lane
Andover, Massachusetts 01810
Either party may be notice in writing change the address to which
notices to it or him are to be addressed hereunder.
7. Miscellaneous.
(i) Entire Agreement. This Agreement constitutes the entire
Agreement between the parties concerning its subject matter and may not be
changed except by a writing duly executed and delivered by the Bank and the
Employee in the same manner as the Agreement.
(ii) Governing Law. This Agreement is governed by and shall be
construed in accordance with the laws of the Commonwealth of Massachusetts.
(iii) Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Employee and by a duly authorized
representative of the Bank.
(iv) Miscellaneous. This is not a contract of employment, and does
not confer upon employee any right to employment or to continued employment.
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(v) 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 the Agreement, or the application of such
portion or provisions 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.
IN WITNESS WHEREOF, the parties hereto have executed the within instrument
as a sealed document as of the date first above written.
ATTEST: THE FIRST NATIONAL BANK
OF IPSWICH
/s/ Tammy Hartmann By: /s/ Donald P. Gill
- --------------------------- ---------------------------------
Tammy Hartmann, Clerk Donald P. Gill, President
/s/ John P. DiIorio, Jr.
-------------------------------------
John P. DiIorio, Jr.
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EXHIBIT A
TO
NON-COMPETITION, CONFIDENTIALITY
AND SEVERANCE AGREEMENT
BETWEEN
THE FIRST NATIONAL BANK OF IPSWICH
AND
JOHN P. DIIORIO, JR.
1. Salary: The Employee's annual salary on the date hereof if $112,500.
2. Benefit Programs: Employee will participate in all benefit programs made
available to all members of senior management of the Bank.
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