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EXHIBIT 10.11
CHANGE IN CONTROL
AGREEMENT
AGREEMENT made
as of this day
of ,
2007 by and among Danvers Bancorp, Inc., a Delaware company
(the "Company"), and its subsidiary, Danversbank, a Massachusetts
savings bank with its main office in Danvers, Massachusetts (the
"Bank") (the Bank and the Company shall be hereinafter collectively
referred to as the "Employers"),
and (the
"Executive").
1.
Purpose
. The Company consider it
essential to the best interests of its stockholders to promote and
preserve the continuous employment of key management personnel. The
Board of Directors of the Company (the "Board") recognizes that, as
is the case with many corporations, the possibility of a Change in
Control (as defined in Section 2 hereof) exists and that such
possibility, and the uncertainty and questions that it may raise
among management, may result in the departure or distraction of key
management personnel to the detriment of the Company and its
stockholders. Therefore, the Board has determined that appropriate
steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Employers' key
management, including the Executive, to their assigned duties
without distraction in the face of potentially disturbing
circumstances arising from the possibility of a Change in Control.
Nothing in this Agreement shall be construed as creating an express
or implied contract of employment and, except as otherwise agreed
in writing between the Executive and the Employers, the Executive
shall not have any right to be retained in the employ of the
Employers.
2.
Change in
Control . A
"Change in Control" shall be deemed to have occurred upon the
occurrence of 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, as amended (the "Act") (other than
the Company, any of its subsidiaries, or any trustee, fiduciary or
other person or entity holding securities under any employee
benefit plan or trust of the Company or any of its subsidiaries),
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 Company representing 25 percent or more of
the combined voting power of the Company's then outstanding
securities having the right to vote in an election of the Company's
Board of Directors ("Voting Securities") (in such case other than
as a result of an acquisition of securities directly from the
Company); or
(b) persons
who, as of the date hereof, constitute the Board (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 Company
subsequent to the date hereof shall be considered an Incumbent
Director if such person's election was approved by or such person
was nominated for election by either (A) a vote of at least a
majority of the Incumbent Directors or (B) a vote of at least
a majority of the Incumbent Directors who are members of a
nominating committee comprised, in the majority, of Incumbent
Directors; but provided further, that any such person whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of members of the Board
of Directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board,
including by reason of agreement intended to avoid or settle any
such actual or threatened contest or solicitation, shall not be
considered an Incumbent Director; or
(c) the
consummation of (A) any consolidation or merger of the Company
where the stockholders of the Company, immediately prior to the
consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own (as such term is defined
in Rule 13d-3 under the Act), directly or indirectly, shares
representing in the aggregate more than 50 percent of the
voting shares of the Company issuing cash or securities in the
consolidation or
merger (or of its ultimate parent corporation, if
any), or (B) any sale, lease, exchange or other transfer (in
one transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or substantially all
of the assets of the Company; or
(d) the
approval by the Company's stockholders of any plan or proposal for
the liquidation or dissolution of the Company.
Notwithstanding
the foregoing, a "Change in Control" shall not be deemed to have
occurred for purposes of the foregoing clause (a) solely as
the result of an acquisition of securities by the Company that, by
reducing the number of shares of Voting Securities outstanding,
increases the proportionate number of shares of Voting Securities
beneficially owned by any person to 25 percent or more of the
combined voting power of all then outstanding Voting Securities;
provided, however, that if any person referred to in this sentence
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 Company) and
immediately thereafter beneficially owns 25 percent or more of
the combined voting power of all then 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 any of the events provided in this
Section 3:
-
(a)
Termination by the Employers
. Termination by the Employers of the employment of
the Executive with the Employers for any reason other than for
Cause, death or Disability. For purposes of this Agreement, "Cause"
shall mean:
-
(i) conduct
by the Executive constituting a material act of willful misconduct
in connection with the performance of his duties, including,
without limitation, misappropriation of funds or property of the
Employers other than the occasional, customary and de minimis use
of Employers' property for personal purposes; or
(ii) the
commission by the Executive of any felony or a misdemeanor
involving moral turpitude, deceit, dishonesty or fraud, or any
conduct by the Executive that would reasonably be expected to
result in material injury to the Employers if he were retained in
his position; or
(iii) continued,
willful and deliberate non-performance by the Executive of his
duties to the Employers (other than by reason of the Executive's
physical or mental illness, incapacity or disability) which has
continued for more than 30 days following written notice of
such non-performance from the Chief Executive Officer;
or
(iv) a
violation by the Executive of the Employers' employment policies
which has continued following written notice of such violation from
the Chief Executive Officer; or
(v) willful
failure to cooperate with a bona fide internal investigation or an
investigation by regulatory or law enforcement authorities, after
being instructed by the Employers to cooperate, or the willful
destruction or failure to preserve documents or other materials
known to be relevant to such investigation or the willful
inducement of others to fail to cooperate or to produce documents
or other materials; or
(vi) removal
or prohibition of the Executive from participating in the conduct
of the Employers' affairs by order issued under applicable law and
regulations by a federal or state banking agency having authority
over the Employers.
A
Terminating Event shall not be deemed to have occurred pursuant to
this Section 3(a) solely as a result of the Executive being an
employee of any direct or indirect successor to the business or
assets of the Company, rather than continuing as an employee of the
Company following a Change in
2
Control. For purposes of clauses (i),
(iii) and (v) hereof, no act, or failure to act, on the
Executive's part shall be deemed "willful" unless done, or omitted
to be done, by the Executive without reasonable belief that the
Executive's act, or failure to act, was in the best interests of
the Employers. For purposes hereof, the Executive will be
considered "Disabled" if, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been
absent from his duties to the Employers on a full-time basis for
180 calendar days in the aggregate in any 12-month
period.
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