Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General
Release (“Separation Agreement”) dated November 5,
2007 is entered into by and between Michael A. Christopher
(“Executive” or “you”) and Legacy Bancorp,
Inc. (the “Company”) and Legacy Banks (the
“Bank”), and confirms the agreement that has been
reached with you in connection with your termination of employment
with the Bank, Company and any of the Bank’s affiliates and
direct and indirect subsidiaries.
1. a. Executive’s
employment with the Company, the Bank, The Legacy Banks Foundation
and all subsidiaries and affiliates of each (herein referred
collectively as “Company Entities”), and
Executive’s status as an officer of any Company Entity, is
hereby terminated effective January 1, 2008 (“Separation
Date”). The parties agree that this termination constitutes
an Event of Termination as set forth in Section 4(a) of each of the
employment agreements (the “Employment Agreements”)
between you and the Company, dated October 26, 2005 (the
“Legacy EA”), and with you and the Bank and the Company
dated October 26, 2005.
b.
Executive acknowledges and agrees that prior to signing this
Agreement, Executive has executed and submitted to the Company and
the Bank a letter (in the form attached hereto as
Exhibit A ), by which Executive has irrevocably
resigned as a member of the Board of Directors of any Company
Entity. Such resignation as a director of any such Company Entity
shall be effective on the Separation Date. As such,
Executive’s status as a director, employee, officer, or agent
of all Company Entities shall have terminated not later than the
Separation Date.
2. In consideration of your
execution of this Separation Agreement and your compliance with its
terms and conditions, and provided that you execute the General
Release attached hereto as Exhibit B (the
“General Release”), the Bank agrees to pay or provide
you with the following benefits
a. A
payment described in Regulation §1.409A-1(b)(9)(iii) to
Internal Revenue Code Section 409 A, subject to the provision
of Section 17 hereof, in settlement of your rights to receive
severance under Section 4(b)(i) of the Legacy EA, the Bank
shall pay you $138,476 on the later of the Separation Date or eight
days following the date you sign this Agreement and the General
Release, providing that you have not revoked your consent.
b.
Subject to the provision of Section 17 hereof, the Bank shall
pay you an aggregate of $951,076 (the “Lump Sum
Amount”) which shall be paid on July 2, 2008, which date
shall not be less than six months and one day from the Separation
Date.
c. The
amounts set forth in Paragraphs 2a and 2b shall be reduced by all
applicable federal, state and local withholding taxes and other
appropriate deductions.
d. If
you so elect, you shall be entitled to continue, at your expense,
the existing medical, dental and disability coverage provided to
you under the Employment Agreements through the term of the
Consulting Agreement (defined in Paragraph 2e). In the
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alternative, if you are eligible for, and you so elect,
continuation coverage under the Consolidated Omnibus Budget
Reconciliation Act (COBRA), the you shall be responsible for paying
the entire cost of such coverage for the period of months following
the Separation Date for which coverage is available.
e. You
acknowledge and agree that you are party to the Restricted Stock
Award Agreement (the “Restricted Stock Agreement”)
dated November 29, 2006, under which you have been granted an
aggregate of 49,500 restricted stock units (the “RSUs”)
relating to shares of common stock of the Company. Simultaneously
with the execution of this Separation Agreement, you are executing
the Consulting Agreement of even date among the Company, the Bank
and you, a copy of which is attached hereto as
Exhibit C (the “Consulting Agreement”). In
consideration of your execution of this Separation Agreement and
the Consulting Agreement, the Company and the Compensation
Committee of the Board of Directors, have agreed, in accordance
with the Legacy Bancorp, Inc. 2006 Equity Incentive Plan (the
“Plan”), that the Restricted Stock Agreement shall be
continued and the shares granted thereunder shall continue to vest
in accordance with the original schedule as set forth therein;
provided, however, that such vesting shall be subject to your
compliance with the terms and conditions of the Plan and Paragraphs
5 and 7 of this Separation Agreement.
f. You
acknowledge and agree that you are party to the Stock Option
Agreements (the “Option Agreements”) dated
November 29, 2006, under which you have been granted stock
options to purchase 82,500 shares of common stock of the Company
(the “Options”). You acknowledge and agree that all
Options are unvested. You further acknowledge and agree that,
effective on the Separation Date, all Options granted under the
Option Agreements, whether vested or unvested, shall be forfeited
and that the Option Agreements shall terminate and shall thereafter
be of no force and effect.
g. The
Bank’s obligation to make the payments and to provide the
benefits set forth in Paragraphs 2a through 2e above shall cease as
of the date of any breach of your obligations under the restrictive
covenants set forth in Paragraphs 5 and 7 hereof. In the event Bank
believes there is a violation of Paragraph 5 or
Paragraph 7, the Bank must give Executive written notice and
opportunity to cure within 15 days of Executive’s
receipt of the notice. This notice and cure provision only applies
to the cessation of payments and does not affect the Bank’s
ability to seek a protective order against Executive.
3. Whether or not you execute
this Separation Agreement, you will be paid for any accrued but
unused vacation days on or before the Separation Date. Requests by
Executive for previously submitted un-reimbursed business expenses
(made in accordance with usual Bank guidelines and practices), to
the extent not theretofore paid must be submitted on or before
5 days after Separation date, and payment shall be made on or
before 15 days after Separation Date. In addition, following
the Separation Date, you will be entitled to receive vested amount,
if any, payable to you under the Company’s or Bank’s
401(k) plan, ESOP and other retirement and deferred compensation
plans in accordance with the terms of such plans and applicable
law, except that, as a condition to your receipt of the Lump Sum
Amount, you agree to forgo any and all vested benefits available
under the Supplemental Executive Retirement Agreement between you
and the Bank, dated January 1, 2004 (the “SERP
Agreement”). Except as specifically set forth herein, your
participation in all Company and Bank plans shall remain subject to
the terms
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and
conditions of such plans as in effect from time to time and you
agree that such terms and conditions are binding on you and the
Company and Bank.
4. You agree that, as a
condition to your receipt of the payments and benefits set forth in
Paragraphs 2a through 2e, you will execute the General Release
attached hereto as Exhibit B on the Separation Date. None of
the payments or benefits described in Paragraphs 2a through 2e
above shall commence prior to the Separation Date.
5. a. You agree that you will
cooperate in good faith and in accordance with the advice of
counsel, with the Company Entities and their directors, officers,
employees, and agents (“Persons”) and its or their
respective counsel, in connection with any investigation, inquiry,
administrative proceeding or litigation relating to any matter in
which you were involved or of which you have knowledge by providing
truthful information, provided that such cooperation does not
unreasonably interfere with your then current professional and
personal commitments. The Company agrees to promptly reimburse you
for reasonable expenses necessarily incurred by you, in connection
with your cooperation pursuant to this paragraph.
b. You
agree that, in the event you are subpoenaed by any person or entity
(including, but not limited to, any government agency) to give
testimony (in a deposition, court proceeding or otherwise) which in
any way relates to your employment by any Company Entity, you will
give prompt notice of such request to the General Counsel of the
Company, and will provide the Company or Bank with a reasonable
opportunity to contest the right of the requesting person or entity
to such disclosure before making such disclosure. Nothing in this
provision shall require you to violate your obligation to comply
with valid legal process.
6. a. The Bank shall issue a
press release announcing your termination of service from the Bank
and Company, the form of which is attached as Exhibit D
. In accordance with the Company and Bank policy, the Company and
the Bank shall respond to any questions from the public regarding
your employment with the Bank solely with reference to your title,
dates of employment at the Bank and the contents of the press
release. All requests for references for you shall be directed to
the Head of the Bank’s Human Resources Department. Nothing
herein shall limit in any way any Company Entity’s or any
Person’s ability to respond to, or take any action in any
legal, administrative or regulatory inquiry, investigation or
proceeding.
b. Each
of the Company, the Bank and Executive (collectively, the
“Parties”) agree that under no condition or
circumstance shall any of the Parties make any disparaging remarks
in any manner or in any form about any of the other Parties
(including, in the case of Executive, any Company Entity, or any
Person), their respective business activities or business or
personal relationships.
7. a. You recognize and
acknowledge and agree that during your employment with the Company
and the Bank you have had access to highly confidential and
proprietary information relating to the Company Entities and
Persons and trade secrets (“Proprietary Information,”
as described herein) and the use, misappropriation or disclosure of
Proprietary Information would cause irreparable injury to the
Company Entities; and it is essential to the protection of the
Company Entities’ good will and to the maintenance of the
Company Entities’
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competitive position that Proprietary Information be kept secret
and that you not disclose Proprietary Information to others, or use
any Proprietary Information to your own advantage or the advantage
of any third parties. For purposes of this Separation Agreement,
the term “Proprietary Information” shall include any
and all material non-public information, and shall include and not
be limited to non-public information relating to any Company
Entities’ past, present or planned or considered business
activities; any Company Entities’ depositors, borrowers and
investors; techniques; processes; tools; market research, data and
strategy; strategic initiatives including mergers, acquisitions,
sales and branch openings and closings; and, information relating
to sales and pricing, including customer-specific information,
pricing policies and strategies. Proprietary Information shall
include information in any form whatsoever, including but not
limited to, hard copy, computer floppy diskette, CD, CD-ROM drive,
information retained in electronic storage, or other information
storage means. “Proprietary Information” shall not
include (a) information in the public domain, or
(b) information disclosed to Executive by third-parties
entitled to make such disclosures. You acknowledge and agree that
your obligations under this paragraph shall survive the Separation
Date. Notwithstanding anything contained herein to the contrary,
Executive may disclose any knowledge of banking, financial and/or
economic principles, concepts or ideas which are not derived from
the business plans or activities of the Company Entities. Further,
Executive may disclose information regarding the business
activities of the Bank to the OTS, Massachusetts Department of
Banking or the FDIC pursuant to a formal regulatory request.
b. In
exchange for the consideration from the Company and the Bank under
Section 2 hereof, the Executive, the Company and the Bank
agree that Executive shall not compete with the Company or the Bank
for a period ending on January 1, 2012, in any city, town or
county in which the Company or the Bank has an office or has filed
an application for regulatory approval to establish an office,
except as agreed to pursuant to a resolution duly adopted by the
Board of Directors. Executive agrees that during such period and
within said cities, towns and counties, Executive shall not work
for or advise, consult or otherwise serve with, directly or
indirectly, any entity whose business materially competes with the
depository, lending or other business activities of the Company or
the Bank. The parties hereto, recognizing that irreparable injury
will result to the Company or the Bank, their businesses and
properties in the event of Executive’s breach of this
Section 7, agree that in the event of any such breach or
threatened breach by Executive, the Company or the Bank will be
entitled, in addition to any other remedies and damages available,
to an injunction to restrain the violation hereof by Executive,
Executive’s partners, agents, servants, employees and all
persons acting for or under the direction of Executive. Nothing
herein will be construed as prohibiting the Company or the Bank
from pursuing any other remedies available to the Company or the
Bank for such breach or threatened breach, including the recovery
of damages from Executive.
In addition, the Executive shall
comply with the following provisions of this Separation Agreement
until January 1, 2012: Executive will not, directly or
indirectly:
i)
Solicit, induce, or attempt to induce employees of any Company
Entity to terminate their employment with, or otherwise cease their
relationship with the Company Entity, or
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ii)
Solicit, induce, hire or attempt to solicit, induce or hire any
employee of any Company Entity to work or provide services to any
third party; or
iii)
Solicit to divert or take away or attempt to divert or to take
away, the business or patronage of any Company Entities’
clients, customers or accounts, or prospective clients, customers
or accounts.
8. You represent that as of the
Separation Date, you will have returned to the Company all property
belonging to the Company Entities and Persons (“Company
Property”) including but not limited to computers, cell
phones, personal communication devices, keys, card access to the
building and office floors, credit card(s) and phone card(s).
9. The Executive shall be
indemnified as provided under the Company’s and Bank’s
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