SEVERANCE AGREEMENT
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This Agreement is entered into by and between Mr. Mark E. Foley, Vice
President, Commercial Lending (the "Executive") and Ipswich Savings Bank (the
"Bank") and shall be effective as of the 8th day of August, 2000 (the "Effective
Date").
WHEREAS, the Board of Directors of the Bank desires to assure that the
Executive, in the Executive's capacity as an officer of the Bank, will consider
the prospect of a "change of control" (as defined in Section 1(A) below) of the
Bank in an objective manner; and
WHEREAS, the Executive desires to commit himself to serve the Bank to the best
of his ability;
NOW, THEREFORE, in consideration of the foregoing and the agreements of the
parties herein contained, the parties hereto agree as follows:
1. Consequences of Termination of the Executive's Employment Following Change of
Control. If there is a "change of control" (as defined in subsection (A) below)
during the "Term" (as defined in Section 3 below), the provisions of this
Section shall apply and shall continue to apply throughout the remainder of the
Term. If, within three months following a "change of control" (as defined in
subsection (A) below), the Executive's employment is terminated by the Executive
following a reduction of the Executive's annual compensation (other than a
reduction which is based on the Bank's financial performance and is similar to
the reduction made to the compensation provided to each other officer of the
Bank), the Executive (or the Executive's estate, if applicable) shall receive
such compensation as is provided to the Executive pursuant to subsection (C)
below. Similarly, if the Executive's employment is terminated without "cause"
(as defined in subsection (B) below) by the Bank within six months following a
"change of control" (as defined in subsection (A) below), the Executive (or the
Executive's estate, if applicable) shall receive such compensation as is
provided to the Executive pursuant to subsection (C) below.
(A) For the purposes of this Section "change of control" shall mean
the occurrence of any 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), other than
the Bank, becomes a "beneficial owner" (as such term is defined in Rule 13d-3 as
promulgated under the Securities Exchange Act of 1934) 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 the Bank and two thirds of the Board of
Directors of the Bank (the "Board") has not consented to such event prior to its
occurrence or within sixty (60) days thereafter, provided that if the consent
occurs after the event, it shall only be valid for the purposes of this
paragraph (i) if a majority of the consenting Board is comprised of Directors of
the Bank who were Directors of the Bank immediately prior to the event;
(2) within two years after a merger, consolidation or sale of
assets involving the Bank, or a contested election of a Bank Director, or any
combination of the foregoing, the individuals who were Directors of the Bank
immediately prior thereto shall cease to constitute a majority of the Board; or
(3) within two years after a tender offer or exchange offer for
voting securities of the Bank (other than by the Bank), the individuals who were
Directors of the Bank immediately prior thereto shall cease to constitute a
majority of the Board; or
(4) within two years after an acquisition in which the Bank
becomes a wholly-owned subsidiary of a bank holding company, individuals who
were Directors of the Bank immediately prior to such acquisition shall not
constitute a majority of the Board of Directors of the parent bank holding
company.
(B) For purposes of this Section 1, "cause" shall mean activities
which have had an adverse effect on the financial strength or stability of the
Bank; neglect of duties for which employed (other than on account of a medically
determinable disability which renders the Executive incapable of performing such
services); committing fraud, misappropriation or embezzlement in the performance
of duties as an employee of the Bank; conviction of a felony involving a crime
of moral turpitude; or engaging in conduct injurious to the Bank.
(C) If the Executive becomes entitled to receive compensation pursuant
to this Section, he shall receive a lump-sum payment from the Bank within 30
days of the termination of his employment in the amount of nine (9) months
salary of the Executive (at the then applicable annual base salary rate of the
Executive, exclusive of bonuses).
2. 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.
3. Term and One-Year Extension. The term of this Agreement shall be one year
commencing with the Effective Date hereof (the "Term"). The Term of this
Agreement will, however, be automatically extended for additional periods of one
year commencing on the first anniversary of the Effective Date and on each
subsequent anniversary thereafter, unless either party notifies the other in
writing at least one month prior to the date of such anniversary of the
Effective Date that the Agreement is not to be extended.
4. Exclusivity Covenant; Non-Competition.
(A) Except with the prior written consent of the Board, the Executive
will not while in the employ of the Bank, undertake or engage in any other
employment occupation or business enterprise. Further, the Executive agrees not
to acquire, assume or participate in, directly or indirectly, any position,
investment or interest, in the areas where the Bank maintains banking offices,
adverse or antagonistic to the Bank, its business or prospects, financial or
otherwise, or take any action towards any of the foregoing, except for any
investment representing less than one percent (1%) of the voting shares of any
publicly-held corporation.
(B) During the Executive's employment by the Bank hereunder and during
a period of one year following the date of termination of his employment with
the Bank for any reason, the Executive will not, directly or indirectly whether
as owner, partner, shareholder, consultant, agent, employee, co-venturer or
otherwise, or through any Person (as defined below), compete in the Bank's
market area (defined as Essex County, Massachusetts) with the banking or any
other business conducted by the Bank or any Subsidiary during the period of his
employment hereunder, nor will he attempt to hire any employee of the Bank,
assist in such hiring by any other Person, encourage any such employee to
terminate his or her relationship with the Bank or encourage any customer to
conduct with any other Person any business or activity which such customer
conducts or could conduct with the Bank.
For purposes of this subsection, (i) the Executive shall not be deemed
to be competing with the Bank if he is employed outside of the Bank's market
area for a bank or corporation which has its headquarters outside of the Bank's
market area, even if such bank or corporation has a branch or office in the
Bank's market area and (ii) the term "Person" shall mean an individual, a
corporation, an association, a partnership, an estate, a trust and any other
entity or organization.
5. 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 the
Bank by reorganization, merger or consolidation and any assignee of all or
substantially all of its business and properties, but, except as to any such
successor or assignee of the Bank, neither this Agreement nor any rights or
benefits hereunder may be assigned by the Bank or by the Executive.
6. 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
Federal and state law.
7. Governing Law. This Agreement shall be construed in accordance with, and
governed for all purposes by, the laws of the Commonwealth of Massachusetts,
without regard to its principles of conflicts of laws.
8. 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.
9. Enforcement. Any legal expenses incurred by the Executive in enforcing his
rights hereunder (regardless of whether the provisions of this Agreement have
terminated) shall be paid by the Bank, provided that both the Executive prevails
on the merits of his claim or claims and the Bank's rights of appeal with
respect to such claim or claims have been exhausted or have otherwise expired.
The Bank shall pay such legal expenses (or reimburse the Executive, if
appropriate) within thirty (30) days after the later of the date on which the
conditions specified in the previous sentence are fulfilled or the date on which
the Executive submits evidence of such legal expenses to the Board.
10. 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.
11. Binding Effect. Subject to the provisions of Section 4 hereof, this
Agreement shall be binding on the successors and assigns of the parties hereto.
12. Notices. Any notices, requests, demands and other communications provided
for by the 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 President (with a copy to
Carol Hempfling Pratt, Foley, Hoag & Eliot, One Post Office Square, Boston,
Massachusetts 02109).
13. Counterparts. This Agreement may be executed in any number of counterparts,
each of which is an original but which shall together constitute one and the
same instrument.
IN WITNESS WHEREOF, the Bank and the Executive have executed this Agreement
under seal as of the date first set forth above.
IPSWICH SAVINGS BANK
By:
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David L. Grey, President
Thereunto duly authorized
"EXECUTIVE"
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Mark E. Foley
