-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VTRhvakziiKx0ZiwcG69Q2BLtqRBm9ln+a8ZwzfteY6gfLqffoBtraJAD8df0m1r zeQqDM29YTf0ljVuTeLobQ== 0000927016-02-005498.txt : 20021113 0000927016-02-005498.hdr.sgml : 20021113 20021113171800 ACCESSION NUMBER: 0000927016-02-005498 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 20020930 FILED AS OF DATE: 20021113 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MASSBANK CORP CENTRAL INDEX KEY: 0000799166 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 042930382 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-15137 FILM NUMBER: 02820932 BUSINESS ADDRESS: STREET 1: 123 HAVEN STREET CITY: READING STATE: MA ZIP: 01867 BUSINESS PHONE: 6179428192 MAIL ADDRESS: STREET 1: 123 HAVEN STREET CITY: READING STATE: PA ZIP: 01867 10-Q 1 d10q.txt FORM 10-Q SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 10-Q [x] QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended September 30, 2002 OR [_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from______________to____________ Commission File Number 0-15137 MASSBANK Corp. (Exact name of registrant as specified in its charter) Delaware 04-2930382 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 123 HAVEN STREET Reading, Massachusetts 01867 (Address of principal executive offices, including Zip Code) Registrant's telephone number, including area code: (781) 662-0100 Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [_] The number of shares outstanding of the issuer's classes of common stock, as of the latest practicable date is: Class: Common stock $1.00 par value per share. Outstanding at October 31, 2002: 4,670,700 shares. MASSBANK CORP. AND SUBSIDIARIES INDEX PART I - FINANCIAL INFORMATION
Page ITEM 1. Financial Statements Consolidated Balance Sheets as of September 30, 2002 (unaudited) and December 31, 2001 3 Consolidated Statements of Income (unaudited) for the three months ended September 30, 2002 and 2001 4 and for the nine months ended September 30, 2002 and 2001 5 Consolidated Statements of Changes in Stockholders' Equity (unaudited) for the nine months ended September 30, 2002 and 2001 6 - 7 Consolidated Statements of Cash Flows (unaudited) for the nine months ended September 30, 2002 and 2001 8 - 9 Condensed Notes to the Consolidated Financial Statements 10 - 11 ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 12 - 35 ITEM 3. Quantitative and Qualitative Disclosures About Market Risk 36 ITEM 4. Disclosure Controls and Procedures 37 PART II - OTHER INFORMATION ITEM 1. Legal Proceedings 38 ITEM 2. Changes in Securities and Use of Proceeds 38 ITEM 3. Defaults Upon Senior Securities 38 ITEM 4. Submission of Matters to a Vote of Security Holders 38 ITEM 5. Other Information 38 ITEM 6. Exhibits and Reports on Form 8-K 38 Signatures 39 Certifications 40 - 41
2 PART I. ITEM 1 MASSBANK CORP. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (In thousands except share data)
September 30, December 31, 2002 2001 (unaudited) Assets: Cash and due from banks $ 10,116 $ 8,945 Short-term investments (Note 3) 225,248 236,382 - ----------------------------------------------------------------------------------------- Total cash and cash equivalents 235,364 245,327 Interest-bearing deposits in banks 4,102 6,490 Securities available for sale, at market value (amortized cost of $383,984 in 2002 and $362,076 in 2001) 395,440 372,584 Trading securities, at market value 27,390 3,089 Loans: (Note 4) Mortgage loans 309,559 296,469 Other loans 18,029 34,548 Allowance for loan losses (2,641) (2,643) - ----------------------------------------------------------------------------------------- Net loans 324,947 328,374 Premises and equipment 6,767 6,927 Accrued interest receivable 4,198 3,950 Goodwill 1,090 1,090 Current income tax asset, net 203 208 Other assets 4,319 3,129 - ----------------------------------------------------------------------------------------- Total assets $1,003,820 $971,168 Liabilities and Stockholders' Equity: Deposits $ 879,516 $849,684 Escrow deposits of borrowers 1,400 1,403 Employee stock ownership plan liability 156 156 Deferred income taxes 2,445 2,275 Other liabilities 2,634 2,746 - ----------------------------------------------------------------------------------------- Total liabilities 886,151 856,264 Stockholders' Equity: Preferred stock, par value $1.00 per share; 2,000,000 shares authorized, none issued -- -- Common stock, par value $1.00 per share; 10,000,000 shares authorized, 7,577,329 and 7,494,980 shares issued, respectively 7,577 7,495 Additional paid-in capital 52,718 62,875 Retained earnings 94,014 99,996 - ----------------------------------------------------------------------------------------- 154,309 170,366 Accumulated other comprehensive income: (Note 7) Net unrealized gains on securities available for sale, net of tax effect 7,170 6,443 Treasury stock at cost, 2,927,029 and 4,362,289 shares, respectively (Note 6) (43,654) (61,749) Common stock acquired by ESOP (156) (156) - ----------------------------------------------------------------------------------------- Total stockholders' equity 117,669 114,904 - ----------------------------------------------------------------------------------------- Total liabilities and stockholders' equity $1,003,820 $971,168
See accompanying condensed notes to consolidated financial statements. 3 MASSBANK CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (Unaudited)
Three months ended September 30, (In thousands except share data) 2002 2001 - ------------------------------------------------------------------------------------ Interest and dividend income: Mortgage Loans $ 5,166 $ 4,953 Other loans 297 526 Securities available for sale: Mortgage-backed securities 3,625 4,815 Other securities 1,511 1,099 Trading securities 158 -- Federal funds sold 822 1,812 Other investments 149 312 - ------------------------------------------------------------------------------------ Total interest and dividend income 11,728 13,517 - ------------------------------------------------------------------------------------ Interest expense: Deposits 5,602 8,064 - ------------------------------------------------------------------------------------ Total interest expense 5,602 8,064 - ------------------------------------------------------------------------------------ Net interest income 6,126 5,453 Provision for loan losses -- 12 - ------------------------------------------------------------------------------------ Net interest income after provision for loan losses 6,126 5,441 - ------------------------------------------------------------------------------------ Non-interest income: Deposit account service fees 140 162 Gains (losses) on securities available for sale, net (80) 1,212 Gains on trading securities, net 30 4 Other 107 111 - ------------------------------------------------------------------------------------ Total non-interest income 197 1,489 - ------------------------------------------------------------------------------------ Non-interest expense: Salaries and employee benefits 1,734 1,591 Occupancy and equipment 497 491 Data processing 134 121 Professional services 128 92 Advertising and marketing 53 40 Amortization of intangibles -- 83 Deposit insurance 45 45 Other 339 369 - ------------------------------------------------------------------------------------ Total non-interest expense 2,930 2,832 - ------------------------------------------------------------------------------------ Income before income taxes 3,393 4,098 Income tax expense 1,183 1,466 - ------------------------------------------------------------------------------------ Net income $ 2,210 $ 2,632 - ------------------------------------------------------------------------------------ Weighted average common shares outstanding: Basic 4,669,659 4,678,601 Diluted 4,795,193 4,821,899 Earnings per share (in dollars): Basic $ 0.47 $ 0.56 Diluted 0.46 0.55
See accompanying condensed notes to consolidated financial statements. 4 MASSBANK CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (Unaudited)
Nine months ended September 30, (In thousands except share data) 2002 2001 - --------------------------------------------------------------------------------------- Interest and dividend income: Mortgage Loans $ 15,570 $ 14,548 Other loans 1,085 1,848 Securities available for sale: Mortgage-backed securities 11,670 14,298 Other securities 4,104 4,378 Trading securities 481 145 Federal funds sold 2,271 6,367 Other investments 537 931 - --------------------------------------------------------------------------------------- Total interest and dividend income 35,718 42,515 - --------------------------------------------------------------------------------------- Interest expense: Deposits 17,639 25,452 - --------------------------------------------------------------------------------------- Total interest expense 17,639 25,452 - --------------------------------------------------------------------------------------- Net interest income 18,079 17,063 Provision for loan losses -- 36 - --------------------------------------------------------------------------------------- Net interest income after provision for loan losses 18,079 17,027 - --------------------------------------------------------------------------------------- Non-interest income: Deposit account service fees 427 482 Gains on securities available for sale, net 1,669 3,107 Gains on trading securities, net 132 106 Other 461 517 - --------------------------------------------------------------------------------------- Total non-interest income 2,689 4,212 - --------------------------------------------------------------------------------------- Non-interest expense: Salaries and employee benefits 5,360 4,874 Occupancy and equipment 1,491 1,582 Data processing 394 372 Professional services 424 341 Advertising and marketing 129 136 Amortization of intangibles 29 245 Deposit insurance 137 133 Other 988 1,007 - --------------------------------------------------------------------------------------- Total non-interest expense 8,952 8,690 - --------------------------------------------------------------------------------------- Income before income taxes 11,816 12,549 Income tax expense 4,254 4,484 - --------------------------------------------------------------------------------------- Net income $ 7,562 $ 8,065 - --------------------------------------------------------------------------------------- Weighted average common shares outstanding: Basic 4,709,018 4,683,704 Diluted 4,838,536 4,808,994 Earnings per share (in dollars): Basic $ 1.61 $ 1.72 Diluted 1.56 1.68
See accompanying condensed notes to consolidated financial statements. 5 MASSBANK CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY For The Nine Months Ended September 30, 2002 (unaudited) (In thousands except share data)
ACCUMULATED COMMON ADDITIONAL OTHER STOCK COMMON PAID-IN RETAINED TREASURY COMPREHENSIVE ACQUIRED STOCK CAPITAL EARNINGS STOCK INCOME BY ESOP TOTAL -------- ---------- --------- ---------- ------------ --------- -------- Balance at December 31, 2001 $7,495 $62,875 $ 99,996 $(61,749) $6,443 $(156) $114,904 Net Income -- -- 7,562 -- -- -- 7,562 Other comprehensive income, net of tax: Unrealized gains on securities, net of reclassification adjustment (Note 7) -- -- -- -- 727 -- 727 -------- Comprehensive income 8,289 Cash dividends paid ($0.66 per share) -- -- (3,115) -- -- -- (3,115) Tax benefit resulting from dividends paid on unallocated shares held by the ESOP -- -- 3 -- -- -- 3 Amortization of ESOP shares committed to be released -- 183 -- -- -- -- 183 Purchase of treasury stock -- -- -- (4,346) -- -- (4,346) Purchase of company stock for deferred compensation plan (Note 6) -- 36 -- (36) -- -- -- Exercise of stock options and related tax benefits 82 1,669 -- -- -- -- 1,751 Transfer resulting from three-for-two stock split -- (12,045) (10,432) 22,477 -- -- -- - --------------------------------------------------------------------------------------------------------------------------- Balance at September 30, 2002 $7,577 $52,718 $ 94,014 $(43,654) $7,170 $(156) $117,669
See accompanying condensed notes to consolidated financial statements. 6 MASSBANK CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY For The Nine Months Ended September 30, 2001 (In thousands except share data)
ACCUMULATED COMMON ADDITIONAL OTHER STOCK COMMON PAID-IN RETAINED TREASURY COMPREHENSIVE ACQUIRED STOCK CAPITAL EARNINGS STOCK INCOME BY ESOP TOTAL -------- ---------- ---------- ---------- -------------- --------- -------- Balance at December 31, 2000 $7,448 $61,674 $93,165 $(59,704) $5,972 $(312) $108,243 Net income -- -- 8,065 -- -- -- 8,065 Other comprehensive income, net of tax: Unrealized gains on securities, net of reclassification adjustment (Note 7) -- -- -- -- 2,704 -- 2,704 ------- Comprehensive income 10,769 Cash dividends paid ($0.63 per share) -- -- (2,950) -- -- -- (2,950) Tax benefit resulting from dividends paid on unallocated shares held by the ESOP -- -- 6 -- -- -- 6 Amortization of ESOP shares committed to be released -- 114 -- -- -- -- 114 Purchase of treasury stock -- -- -- (1,412) -- -- (1,412) Purchase of company stock for deferred compensation plan (Note 6) -- 45 -- (45) -- -- -- Exercise of stock options and related tax benefits 21 471 -- -- -- -- 492 - --------------------------------------------------------------------------------------------------------------------------------- Balance at September 30, 2001 $7,469 $62,304 $98,286 $(61,161) $8,676 $(312) $115,262
See accompanying condensed notes to consolidated financial statements. 7 MASSBANK CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited)
Nine Months Ended September 30, 2002 2001 ---- ---- (In thousands) Cash flows from operating activities: Net income $ 7,562 $ 8,065 Adjustments to reconcile net income to net cash (used in) provided by operating activities: Depreciation and amortization 501 654 Loan interest capitalized (21) (27) Amortization of ESOP shares committed to be released 183 114 (Increase) decrease in accrued interest receivable (248) 1,487 Decrease in other liabilities (112) (250) Decrease in current income tax asset, net 5 190 Amortization of premiums (accretion of discounts) on securities, net 325 (588) Net trading securities activity (25,202) 20,439 Gains on securities available for sale, net (1,736) (3,107) More than temporary impairment writedown of securities available for sale 67 -- Gains on trading securities, net (132) (106) Decrease in deferred mortgage loan origination fees, net of amortization (185) (30) Deferred income tax (benefit) (51) (143) Decrease in other assets 41 1,090 Provision for loan losses -- 36 Gains on sales of premises and equipment -- (4) (Decrease) increase in escrow deposits of borrowers (3) 4 - ---------------------------------------------------------------------------------------- Net cash (used in) provided by operating activities (19,006) 27,824 - ---------------------------------------------------------------------------------------- Cash flows from investing activities: Purchases of term federal funds -- (10,000) Proceeds from maturities of term federal funds -- 40,000 Net decrease (increase) in interest bearing bank deposits 2,388 (13,453) Proceeds from sales of investment securities available for sale 43,683 18,416 Proceeds from maturities of investment securities available for sale 53,000 69,230 Purchases of investment securities available for sale (166,475) (26,184) Purchases of mortgage-backed securities (19,977) (50,169) Principal repayments of mortgage-backed securities 69,002 56,083 Principal repayments of securities available for sale 5 3 Loans originated (75,839) (71,565) Loan principal payments received 79,444 55,968 Purchases of premises & equipment (284) (2,535) Proceeds from sales of premises and equipment -- 4 - ---------------------------------------------------------------------------------------- Net cash (used in) provided by investing activities (15,053) 65,798 - ----------------------------------------------------------------------------------------
8 MASSBANK CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (continued) (unaudited)
Nine Months Ended September 30, 2002 2001 ---- ---- (In thousands) Cash flows from financing activities: Net increase in deposits 29,803 18,650 Payments to acquire treasury stock (4,382) (1,457) Purchase of Company stock for deferred compensation plan 36 45 Issuance of common stock under stock option plan 1,312 393 Tax benefit resulting from stock options exercised 439 99 Cash dividends paid on common stock (3,115) (2,950) Tax benefit resulting from dividends paid on unallocated shares held by the ESOP 3 6 - ----------------------------------------------------------------------------------------- Net cash provided by financing activities 24,096 14,786 - ----------------------------------------------------------------------------------------- Net (decrease) increase in cash and cash equivalents (9,963) 108,408 Cash and cash equivalents at beginning of period 245,327 122,021 - ----------------------------------------------------------------------------------------- Cash and cash equivalents at end of period $235,364 $230,429 - ----------------------------------------------------------------------------------------- Supplemental cash flow disclosures: Cash transactions: Cash paid during the period for interest $ 17,683 $ 25,518 Cash paid during the period for income taxes, net of refunds 3,857 4,336 Purchases of securities not settled at beginning of period which settled during the period 47 60 Sales and maturities of securities not settled at beginning of period which settled during the period 1,008 573 Non-cash transactions: SFAS 115: Increase in accumulated other comprehensive income 727 2,704 Increase in deferred tax liabilities 221 1,395 Purchases of securities not settled at end of period 138 6,461 Sales and maturities of securities not settled at end of period 2,330 1,602 - ----------------------------------------------------------------------------------------
See accompanying condensed notes to consolidated financial statements. 9 MASSBANK CORP. CONDENSED NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (1) Basis of Presentation The financial condition and results of operations of MASSBANK Corp. (the "Company") essentially reflect the operations of its subsidiary, MASSBANK (the "Bank"). All significant intercompany balances and transactions have been eliminated in consolidation. The accompanying financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America and in the opinion of management, include all adjustments of a normal recurring nature necessary for the fair presentation of the financial condition of the Company as of September 30, 2002 and December 31, 2001, and its operating results for the three months and nine months ended September 30, 2002 and 2001. The results of operations for any interim period are not necessarily indicative of the results to be expected for the entire year. Certain amounts in the prior year's consolidated financial statements were reclassified to facilitate comparison with the current fiscal year. The Company's reported per share amounts and weighted average common shares outstanding for the current and prior year have been restated to reflect the Company's three-for-two stock split of April 19, 2002. The information in this report should be read in conjunction with the financial statements and related notes included in the Annual Report on Form 10-K for the year ended December 31, 2001. (2) Cash and Cash Equivalents: For purposes of reporting cash flows, cash and cash equivalents consist of cash and due from banks, and short-term investments with original maturities of less than 90 days. (3) Short-Term Investments Short-term investments consist of the following: - ------------------------------------------------------------------------------- At At (In thousands) September 30, 2002 December 31, 2001 - ------------------------------------------------------------------------------- Federal funds sold (overnight) $200,265 $204,294 Money market funds 24,983 32,088 - ------------------------------------------------------------------------------- Total short-term investments $225,248 $236,382 - ------------------------------------------------------------------------------- The investments above are stated at cost which approximates market value and have original maturities of less than 90 days. (4) Commitments At September 30, 2002, the Company had outstanding commitments to originate mortgage loans and to advance funds for construction loans amounting to $10,183,000 and commitments under existing home equity lines of credit and other loans of approximately $40,529,000 which are not reflected on the consolidated balance sheet. In addition, as of September 30, 2002, the Company had a performance standby letter of credit conveyed to others in the amount of $156,000. (5) Basic Earnings Per Share Basic earnings per share is calculated by dividing net income by the weighted average number of common shares outstanding during the period. Diluted earnings per share gives effect to all dilutive potential shares resulting from stock options that were outstanding during the period. 10 CONDENSED NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (continued) (6) Directors' Deferred Compensation Plan In 1988, the Company established a deferred compensation plan for its directors. The plan allows the Company's directors to defer receipt of all or a portion of their compensation until (1) their attaining the age of 72, or (2) their termination as a director of the Company. The plan was later amended to allow the directors' compensation to be invested in Company stock held in an irrevocable trust. At September 30, 2002 the trust held 23,400 shares of MASSBANK Corp. stock that the Company has classified as treasury stock. The treasury shares are considered outstanding in the computation of earnings per share and book value per share. (7) Comprehensive Income Comprehensive income is defined as "the change in equity of a business enterprise during a period from transactions and other events and circumstances from non-owner sources." It includes all changes in equity during a period except those resulting from investments by and distributions to shareholders. The term "comprehensive income" describes the total of all components of comprehensive income including net income. The Company's other comprehensive income and related tax effect for the nine months ended September 30, 2002 and 2001 is as follows:
For the Nine Months Ended September 30, 2002 - ------------------------------------------------------------------------------------ Tax Before-Tax (Expense) Net-of-Tax (In thousands) Amount or Benefit Amount ------ ---------- ------ Unrealized gains on securities: Unrealized holding gains arising during period $ 2,617 $ (917) $ 1,700 Less: reclassification adjustment for gains realized in net income 1,669 (696) 973 ------- ------- ------- Net unrealized gains 948 (221) 727 ------- ------- ------- Other comprehensive income $ 948 $ (221) $ 727 ------- ------- ------- For the Nine Months Ended September 30, 2001 - ------------------------------------------------------------------------------------ Tax Before-Tax (Expense) Net-of-Tax (In thousands) Amount or Benefit Amount ------ ---------- ------ Unrealized gains on securities: Unrealized holding gains arising during period $ 7,205 $(2,692) $ 4,513 Less: reclassification adjustment for gains realized in net income 3,107 (1,298) 1,809 ------- ------- ------- Net unrealized gains 4,098 (1,394) 2,704 ------- ------- ------- Other comprehensive income $ 4,098 $(1,394) $ 2,704 ------- ------- -------
11 PART I. ITEM 2 MASSBANK CORP. AND SUBSIDIARIES MANAGEMENT'S DISCUSSION & ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS September 30, 2002 Forward-Looking Statement Disclosure. This Form 10-Q may contain forward-looking information, including information concerning the Company's expectations of future business prospects. These forward-looking statements are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. The Company may also make written or oral forward-looking statements in other documents filed with the Securities and Exchange Commission ("SEC"), in annual reports to stock- holders, in press releases and other written materials, and in oral statements made by the Company's officers, directors or employees. You can identify forward-looking statements by the use of the words "believe," "expect," "anticipate," "intend," "estimate," "assume," "will," "should," and other expressions which predict or indicate future events and trends and which do not relate to historical matters. These forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause the Company's actual results or performance to be materially different from the results and performance expressed or implied by the forward-looking statements. Forward- looking statements include, but are not limited to, statements concerning the Company's belief, expectations, or intentions concerning the Company's future performance, the financial outlook of the markets it serves and the performance and activities of its competitors. These statements reflect the Company's current views, are based on numerous assumptions and are subject to numerous risks, uncertainties and other factors including but not limited to the following: - Unexpected fluctuations in market interest rates - Unexpected fluctuations in the market for equities, bonds, federal funds and other financial instruments - Continued extreme volatility in the equity markets - An increase in the level of non-performing assets - An increase in competitive pricing pressures within the Company's market which may result in the following: . An increase in the Company's cost of funds . Changes in volume of loan originations . Limit the ability of the Company to attract and retain banking customers - Adverse legislative or regulatory developments - Adverse impacts resulting from the continuing war on terrorism - An increase in medical insurance and other employee-related costs - The impact of inflation, and other factors described in the Company's annual report on Form 10-K 12 Results of Operations for the three months ended September 30, 2002 vs the three months ended September 30, 2001 GENERAL For the quarter ended September 30, 2002, MASSBANK Corp. reported net income of $2,210,000, or $0.46 in diluted earnings per share compared to net income of $2,632,000 or $0.55 in diluted earnings per share in the third quarter of 2001. Basic earnings per share in the recent quarter were $0.47 per share, compared to $0.56 per share in the third quarter of last year. The current and prior year per share amounts reflect the three-for-two split of the Company's common stock that occurred on April 19, 2002. The Company's net income for the third quarter 2002 compared to the same quarter of 2001 reflects an improvement of $685,000 in net interest income after provision for loan losses. This increase, however, is offset by a decrease in non-interest income of $1,292,000. In the third quarter 2002, the Company recorded net losses on securities of $50,000 compared to net securities gains of $1,216,000 during the same quarter last year. Net securities losses in the recent quarter were comprised of $264,000 in gains on debt securities and $314,000 in losses on equity securities. These losses on equity securities were primarily attributable to the continued decline in equity securities prices during recent months. Deposit account service fees and other non-interest income declined by $26,000 in the recent quarter compared to the same quarter a year ago. Earnings results for the third quarter 2002 also reflect an increase in non-interest expense of $98,000 partially offset by a slight decline in the Company's income tax rate. Net interest income Net interest income totaled $6,126,000 in the third quarter of 2002, an increase of $673,000 from the same quarter a year ago. This is the fourth consecutive quarter that the Company has increased its net interest income. Improvements in net interest income are also expected in the fourth quarter of 2002. The increase in net interest income during the recent quarter was principally attributable to an improvement in the Company's net interest margin combined with the positive effect of average earning asset growth. The Company's net interest margin for the three months ended September 30, 2002 was 2.51%, an increase from 2.33% reported in the third quarter 2001. Average earning assets for the quarter ended September 30, 2002 increased $38.0 million to $978.5 million, from $940.5 million in the same quarter of 2001. Interest and Dividend Income Interest and dividend income on a fully taxable equivalent basis for the three months ended September 30, 2002, decreased $1,793,000 or 13.2% to $11,751,000 from $13,544,000 for the three months ended September 30, 2001. The decrease in interest and dividend income resulted from a decrease in yield on the Company's average earning assets, partially offset by the higher interest income resulting from an increase of $38.0 million in average earning assets. As reflected in the table on page 15 of this report, the yield on the Company's average earning assets in the third quarter 2002 was 4.80%, down from 5.76% in the same quarter of 2001. The reduction in yield on the Company's average earning assets is primarily attributable to lower market interest rates. As you can see from the table on page 15 of this report, the average yield on the bank's overnight Federal funds sold declined 176 basis points, from 3.46% in the third quarter of last year to 1.70% in the recent quarter. This contributed significantly to the bank's decreased interest income in the recent quarter compared to the same quarter last year. 13 Interest Expense Total interest expense for the three months ended September 30, 2002 decreased $2,462,000, or 30.5% to $5,602,000 from $8,064,000 for the three months ended September 30, 2001. The decrease in interest expense is due primarily to a reduction in the Bank's average cost of funds, partially offset by an increase in interest expense due to higher average deposits. A decrease in the Bank's deposit rates, due to declining market interest rates in the last twelve months, has resulted in a decline of 127 basis points in the Bank's cost of funds, from 3.81% in the third quarter of 2001 to 2.54% in the recent quarter. The Company's average deposits, as shown in the table on page 16, increased $36.5 million to $875.4 million in the third quarter of 2002, from $838.9 million in the third quarter 2001. 14
AVERAGE BALANCE SHEETS Three Months Ended September 30, 2002 2001 ---- ---- Average Average Average Interest Yield/ Average Interest Yield/ (In thousands) Balance Income Rate Balance Income Rate (1) (1) - ------------------------------------------------------------------------------------------ Assets: Earning assets: Federal funds sold $191,941 $ 822 1.70% $207,758 $ 1,812 3.46% Short-term investments (4) 28,684 149 2.06 31,967 312 3.87 Investment securities (2) 170,042 1,534 3.61 86,346 1,126 5.22 Mortgage-backed securities (2) 229,751 3,625 6.31 292,538 4,815 6.58 Trading securities 29,764 158 2.12 5 -- -- Mortgage loans (3) 310,000 5,166 6.67 286,136 4,953 6.92 Other loans (3) 18,273 297 6.44 35,734 526 5.82 - -------------------------------------------------- ---------------- Total earning assets 978,455 $11,751 4.80% 940,484 $13,544 5.76% Allowance for loan losses (2,642) (2,616) - ------------------------------------------------------------------------------------------ Total earning assets less allowance for loan losses 975,813 937,868 Other assets 22,247 20,873 - ------------------------------------------------------------------------------------------ Total assets $998,060 $958,741 - ------------------------------------------------------------------------------------------
(1) Tax exempt income on equity securities and municipal bonds is included on a tax equivalent basis. (2) Average balances include unrealized gains on securities available for sale. (3) Loans on non-accrual status are included in average balances. (4) Short-term investments consist of interest-bearing deposits in banks and investments in money market funds. Continued on next page 15
AVERAGE BALANCE SHEETS - (continued) Three Months Ended September 30, 2002 2001 ---- ---- Average Average Average Interest Yield/ Average Interest Yield/ (In thousands) Balance Expense Rate Balance Expense Rate - ------------------------------------------------------------------------------------------ Liabilities: Deposits: Demand and NOW $ 83,404 $ 95 0.45% $ 81,128 $ 126 0.62% Savings 494,035 3,224 2.59 357,917 3,005 3.33 Time certificates of deposit 297,927 2,283 3.04 399,849 4,933 4.89 - -------------------------------------------------- ---------------- Total deposits 875,366 5,602 2.54 838,894 8,064 3.81 Other liabilities 5,281 6,629 - ------------------------------------------------------------------------------------------ Total liabilities 880,647 845,523 Stockholders' equity 117,413 113,218 - ------------------------------------------------------------------------------------------ Total liabilities and stockholders' equity $998,060 $958,741 - ------------------------------------------------------------------------------------------ Net interest income (tax-equivalent basis) 6,149 5,480 Less adjustment of tax-exempt interest income 23 27 - ------------------------------------------------------------------------------------------ Net interest income $6,126 $5,453 - ------------------------------------------------------------------------------------------ Interest rate spread (5) 2.26% 1.95% - ------------------------------------------------------------------------------------------ Net interest margin (6) 2.51% 2.33% - ------------------------------------------------------------------------------------------
(5) Interest rate spread represents the difference between the yield on earning assets and the cost of the Company's deposits. (6) Net interest margin represents net interest income (tax equivalent basis) divided by average interest earning assets. 16 Provision for Loan Losses The provision for loan losses represents a charge against current earnings and an addition to the allowance for loan losses. There was no provision for loan losses in the third quarter of 2002. This compares to a $12,000 provision for loan losses in the third quarter of last year. In determining the amount to provide for loan losses, the key factor is the adequacy of the allowance for loan losses. Management uses a methodology to systematically measure the amount of estimated loan loss exposure inherent in the portfolio for purposes of establishing a sufficient allowance for loan losses. The methodology includes three elements: an analysis of individual loans deemed to be impaired in accordance with the terms of Statement of Financial Accounting Standard No. 114, "Accounting by Creditors for Impairment of a Loan", general loss allocations for various loan types based on loss experience factors and an unallocated allowance which is maintained based on management's assessment of many factors including the risk characteristics of the portfolio, concentrations of credit, current and anticipated economic conditions that may affect the borrower's ability to pay, and trends in loan delinquencies and charge-offs. Realized losses, net of recoveries, are charged directly to the allowance. While management uses the information currently available in establishing the allowance for loan losses, future adjustments to the allowance may be necessary if economic conditions differ from the assumptions used in making the evaluation. In addition, various regulatory agencies, as an integral part of their examination process, periodically review the Bank's allowance for loan losses. Such agencies may require the Bank to recognize additions to the allowance based on judgments different from those of management. At September 30, 2002, the allowance for loan losses was $2,641,000 representing 807.6% of nonaccrual loans. The Bank's nonaccrual loans totaled $327,000 at September 30, 2002 down from $644,000 at December 31, 2001 and $566,000 at September 30, 2001. The Bank had net loan charge-offs of $1,000 in the recent quarter compared to net loan charge-offs of $14,000 in the same quarter last year. Management believes that the allowance for loan losses as of September 30, 2002 is adequate to cover the risks inherent in the loan portfolio under current conditions. 17 Non-Interest Income Non-interest income consists of deposit account service fees, net gains (losses) on securities and other non-interest income. Non-interest income decreased $1,292,000 to $197,000 in the recent quarter, from $1,489,000 in the comparable quarter of the prior year. In the third quarter 2002, the Company recorded net losses on securities available for sale of $80,000 compared to net securities gains of $1,212,000 during the same quarter last year. Net losses from the sale of securities available for sale in the recent quarter were comprised of $234,000 in gains on debt securities and $287,000 in losses on equity securities. In addition, the Company in the recent quarter recorded a charge to earnings of $27,000 due to two equity securities in the bank's investment portfolio that suffered a loss in market value that was considered by management to be other than temporary. Net gains on trading securities increased to $30,000 in the recent quarter from $4,000 in the same quarter last year. In the third quarter 2002, the Company recorded net trading securities gains on sales of U.S. Treasury obligations of $41,000. It also recorded mark-to-market losses on U.S. Treasury obligations of $11,000 due to the recent volatility in the bond markets. The losses from the sale of equity securities in the third quarter 2002 were primarily attributable to the continued decline in equity securities prices during recent months. In the face of a stock market which has declined in the last couple of years, the Company sought to maximize the value of its equity securities by selling securities that it expected would decline in value. Over the last 30 months the Company has taken approximately $8.2 million in gains on equity securities available for sale and trading. Consequently, as a result of the equity securities gains the Company has taken and the decline in equity market prices, the net unrealized gains in the Company's equity securities portfolio have been exhausted. During this same period falling interest rates have increased the value of the Company's debt securities and as a result total net unrealized gains on all securities available for sale were $11.5 million at September 30, 2002. (See net unrealized gains on securities available for sale at September 30, 2002 on page 29 of this report.) This is an increase of $948, 000 over net unrealized gains on securities available for sale at December 31, 2001. (See page 30 of this report) Net unrealized gains on securities available for sale, net of tax effect, are a positive $7.2 million at the end of the third quarter 2002. Due to the decline in equity market prices over the past nine months the Company expects that opportunities for securities gains from the equity portfolio will be substantially reduced in future quarters. In addition, if these market conditions persist or deteriorate further, the Company may incur losses on the sales of its equity securities. The Bank's deposit account service fees and other non-interest income declined to $140,000 and $107,000, respectively, in the third quarter of 2002 from $162,000 and $111,000, respectively, in the third quarter of 2001. Non-Interest Expense Non-interest expense increased $98,000 or 3.5% to $2,930,000 for the three months ended September 30, 2002 compared to the same period in 2001. This increase is due primarily to increases in salaries and employee benefits and professional services expenses. Salaries and employee benefits, the largest component of non-interest expense increased $143,000 or 9.0% to $1,734,000 in the recent quarter, from $1,591,000 in the comparable quarter of 2001. The majority of this increase is due to higher pension costs of $91,000. 18 Amortization of intangibles expense decreased $83,000 in the third quarter 2002, compared to the third quarter last year. This expense decreased for the following reasons: 1. The deposit acquisition premium that the Bank recorded in 1992 in connection with its acquisition of the deposits and certain assets of the former Central Savings Bank, Lowell was fully amortized in February 2002. 2. On January 1, 2002 the Company adopted Statement of Financial Accounting Standard ("SFAS") No. 142, "Goodwill and Other Intangible Assets." SFAS 142 requires that upon adoption of the Statement, any goodwill recorded on a company's balance sheet would no longer be amortized, but be reviewed for impairment periodically or upon the occurrence of certain triggering events. At January 1, 2002 the Company had $1,090,000 of goodwill on its balance sheet that was previously being amortized at a rate of $25,000 per quarter. Professional services expenses increased from $92,000 for the three months ended September 30, 2001 to $128,000 for the three months ended September 30, 2002 due primarily to higher legal fees incurred in connection with operational matters and ordinary routine litigation incidental to the Company's business. All other non-interest expenses combined, consisting of occupancy and equipment, data processing, advertising and marketing, deposit insurance and other expenses increased $2,000 to $1,068,000 for the three months ended September 30, 2002 from $1,066,000 for the three months ended September 30, 2001. Income Tax Expense The Company, the Bank and its subsidiaries file a consolidated federal income tax return. The Parent Company, the Bank and its subsidiaries are subject to a State of Massachusetts Corporate Excise Tax. The Company recorded income tax expense of $1,183,000 in the third quarter of 2002, a decrease of $283,000 when compared to the same quarter last year. The decrease in income tax expense is due primarily to a decrease in income before income taxes and a decrease in effective income tax rate. The Company's income before income taxes was $3,393,000 in the recent quarter compared to $4,098,000 for the same quarter a year ago. The effective income tax rate for the three months ended September 30, 2002 and 2001 was 34.9% and 35.8%, respectively. 19 Results of Operations for the nine months ended September 30, 2002 vs the nine months ended September 30, 2001 General For the nine months ended September 30, 2002, the Company reported net income of $7,562,000 or $1.56 in diluted earnings per share ($1.61 in basic earnings per share) compared to net income of $8,065,000 or $1.68 in diluted earnings per share ($1.72 in basic earnings per share) for the nine months ended September 30, 2001. The current and prior year per share amounts reflect the three-for-two split of the Company's common stock that occurred on April 19, 2002. The Company's financial performance in the first nine months of 2002 reflects an increase in net interest income after provision for loan losses of $1,052,000. This increase, however, is offset by a decrease in non-interest income of $1,523,000 due primarily to lower securities gains in the first nine months of 2002 when compared to the same period in 2001, a decrease in deposit account service fees and other non-interest income of $111,000, and an increase in non-interest expense of $262,000. The decrease in securities gains is primarily due to the continued decline in equity securities prices during recent months. Earnings results for the nine months ended September 30, 2002 also reflect a slight increase in the Company's effective income tax rate. Net Interest Income Net interest income totaled $18,079,000 for the nine months ended September 30, 2002, compared to $17,063,000 for the same period in 2001. The increase of $1,016,000 is primarily attributable to an increase in average earning assets, and an increase in the Company's net interest margin. The Company's net interest margin for the first nine months of 2002 was 2.50% compared to 2.45% for the same period last year. Average earning assets for the nine months ended September 30, 2002 increased $34.8 million to $968.9 million from $934.1 million for the corresponding period in 2001. The Company's interest rate spread for the first nine months of 2002 increased to 2.20% from 2.00% for the first nine months of last year. The yield on the Company's average earning assets in the first nine months of 2002 decreased 116 basis points to 4.92% from 6.08% in the corresponding period of 2001. The Company's average cost of funds for the first nine months of 2002 decreased 136 basis points to 2.72% from 4.08% for the nine months ended September 30, 2001. 20
AVERAGE BALANCE SHEETS Nine Months Ended September 30, 2002 2001 -------------- -------------- Average Average Average Interest Yield/ Average Interest Yield/ (In thousands) Balance Income Rate Balance Income Rate (1) (1) - ------------------------------------------------------------------------------------------ Assets: Earning assets: Federal funds sold $178,964 $ 2,271 1.70% $192,905 $ 6,367 4.41% Short-term investments (4) 31,824 537 2.26 27,384 928 4.53 Investment securities (2) 147,712 4,169 3.76 110,739 4,450 5.36 Mortgage-backed securities (2) 243,639 11,670 6.39 285,977 14,298 6.67 Trading securities 30,186 481 2.12 3,288 145 5.93 Mortgage loans (3) 308,910 15,570 6.72 277,565 14,548 6.99 Other loans (3) 27,666 1,085 5.24 36,241 1,848 6.79 - -------------------------------------------------- ---------------- Total earning assets 968,901 $35,783 4.92% 934,099 $42,584 6.08% Allowance for loan losses (2,642) (2,609) - ------------------------------------------------------------------------------------------ Total earning assets less allowance for loan losses 966,259 931,490 Other assets 22,353 20,356 - ------------------------------------------------------------------------------------------ Total assets $988,612 $951,846
(1) Tax exempt income on equity securities and municipal bonds is included on a tax equivalent basis. (2) Average balances include unrealized gains on securities available for sale. (3) Loans on non-accrual status are included in average balances. (4) Short-term investments consist of interest-bearing deposits in banks and investments in money market funds. Continued on next page 21
AVERAGE BALANCE SHEETS - (continued) Nine Months Ended September 30, 2002 2001 -------------- -------------- Average Average Average Interest Yield/ Average Interest Yield/ (In thousands) Balance Expense Rate Balance Expense Rate - ------------------------------------------------------------------------------------------ Liabilities: Deposits: Demand and NOW $ 82,499 $ 273 0.44% $ 80,464 $ 370 0.62% Savings 450,894 8,983 2.66 347,199 8,732 3.36 Time certificates of deposit 333,427 8,383 3.36 406,084 16,350 5.38 - -------------------------------------------------- ---------------- Total deposits 866,820 17,639 2.72 833,747 25,452 4.08% Other liabilities 5,117 6,407 - ------------------------------------------------------------------------------------------ Total liabilities 871,937 840,154 Stockholders' equity 116,675 111,692 - ------------------------------------------------------------------------------------------ Total liabilities and stockholders' equity $988,612 $951,846 - ------------------------------------------------------------------------------------------ Net interest income (tax-equivalent basis) 18,144 17,132 Less adjustment of tax-exempt interest income 65 69 - ------------------------------------------------------------------------------------------ Net interest income $18,079 $17,063 - ------------------------------------------------------------------------------------------ Interest rate spread (5) 2.20% 2.00% - ------------------------------------------------------------------------------------------ Net interest margin (6) 2.50% 2.45% - ------------------------------------------------------------------------------------------
(5) Interest rate spread represents the difference between the yield on earning assets and the cost of the Company's deposits. (6) Net interest margin represents net interest income (tax equivalent basis) divided by average interest earning assets. 22 Provision for Loan Losses The provision for loan losses represents a charge against current earnings and an addition to the allowance for loan losses. The Company did not record any provision for loan losses in the first nine months of 2002. This compares to $36,000 in provision for loan losses recorded in the first nine months of last year. The Bank has not recorded any provision for loan losses in 2002 because it has had minimal net loan charge-offs in the last two years. In determining the amount to provide for loan losses, the key factor is the adequacy of the allowance for loan losses. Management uses a methodology to systematically measure the amount of estimated loan loss exposure inherent in the portfolio for purposes of establishing a sufficient allowance for loan losses. The methodology includes three elements: an analysis of individual loans deemed to be impaired in accordance with the terms of Statement of Financial Accounting Standard No. 114, "Accounting by Creditors for Impairment of a Loan", general loss allocations for various loan types based on loss experience factors and an unallocated allowance which is maintained based on management's assessment of many factors including the risk characteristics of the portfolio, concentrations of credit, current and anticipated economic conditions that may affect the borrower's ability to pay, and trends in loan delinquencies and charge-offs. Realized losses, net of recoveries, are charged directly to the allowance. While management uses the information currently available in establishing the allowance for loan losses, future adjustments to the allowance may be necessary if economic conditions differ from the assumptions used in making the evaluation. In addition, various regulatory agencies, as an integral part of their examination process, periodically review the Bank's allowance for loan losses. Such agencies may require the Bank to recognize additions to the allowance based on judgments different from those of management. At September 30, 2002, the allowance for loan losses was $2,641,000 representing 807.6% of nonaccrual loans. The Bank's nonaccrual loans totaled $327,000 at September 30, 2002 down from $644,000 at December 31, 2001 and $566,000 at September 30, 2001. The Bank had net loan charge-offs for the nine months ended September 30, 2002 and 2001 of $2,000 and $16,000, respectively. Management believes that the allowance for loan losses as of September 30, 2002 is adequate to cover the risks inherent in the loan portfolio under current conditions. Non-Interest Income Non-interest income consists of deposit account service fees, net gains on securities and other non-interest income. Non-interest income decreased $1,523,000 to $2,689,000 for the first nine months of 2002 from $4,212,000 for the same period of the prior year. This decrease is due primarily to lower securities gains in the first nine months of 2002. 23 Non-Interest Income (continued) Net gains on securities available for sale totaled $1,669,000 in the first nine months of 2002 compared to $3,107,000 in the same period last year. Realized gains on the sale of equity securities and debt securities totaled $1,392,000 and $344,000, respectively, for the nine months ended September 30, 2002. In addition, the Company in the first nine months of 2002 recorded a charge to earnings of $67,000 due to equity securities in its investment securities portfolio having suffered a loss in market value that was considered by management to be other than temporary. The decrease in securities gains in the first nine months of 2002 is primarily attributable to the continued decline in equity securities prices during recent months. In the face of a stock market which has declined in the last couple of years, the Company sought to maximize the value of its equity securities by selling securities that it expected would decline in value. Over the last 30 months the Company has taken approximately $8.2 million in gains on equity securities available for sale and trading. Consequently, as a result of the equity securities gains the Company has taken and the decline in equity market prices, the net unrealized gains in the Company's equity securities portfolio have been exhausted. During this same period falling interest rates have increased the value of the Company's debt securities and as a result net unrealized gains on all securities available for sale were $11.5 million at September 30, 2002. (See net unrealized gains on securities available for sale at September 30, 2002 on page 29 of this report.) This is an increase of $948,000 over net unrealized gains on securities available for sale at December 31, 2001. (See page 30 of this report) Net unrealized gains on securities available for sale, net of tax effect, are a positive $7.2 million at the end of the third quarter 2002. Due to the decline in equity market prices over the past nine months the Company expects that opportunities for securities gains from the equity portfolio will be substantially reduced in future quarters. In addition, if these market conditions persist or deteriorate further, the Company may incur losses on the sales of its equity securities. Net gains on trading securities increased to $132,000 for the first nine months of 2002 from $106,000 for the same period last year. During the first nine months of 2002, the Company recorded net trading securities gains on sales of marketable equity securities and U.S. Treasury obligations of $22,000 and $56,000, respectively. Net gains on trading securities in the first nine months of 2002 also include mark-to-market gains on U.S. Treasury obligations of $54,000. Falling interest rates and volatility in the bond markets have provided the Company with trading gains that may not be available in future periods. Trading gains in the bond portfolio are more likely during periods of falling interest rates. The Bank's deposit account service fees and other non-interest income totaled $427,000 and $461,000, respectively, for the first nine months of 2002 compared to $482,000 and $517,000, respectively, for the first nine months of 2001. The decline in other non-interest income is due primarily to the assets in the Company's deferred compensation plan having declined in market value in the nine months ended September 30, 2002 versus having appreciated in value in the same period last year. This decrease of $72,000 is offset by an equivalent decline in deferred compensation expense under the salaries and employee benefits expense component as reflected below. Non-Interest Expense Non-interest expense for the nine months ended September 30, 2002 increased $262,000 or 3.0% to $8,952,000 from $8,690,000 for the same period last year. This increase is due primarily to increases in salaries and employee benefits and professional services expenses. 24 Salaries and employee benefits, the largest component of non-interest expense increased $486,000 or $10.0% to $5,360,000 for the first nine months of 2002, from $4,874,000 for the comparable period of 2001. This increase reflects an increase in salaries of $188,000 due primarily to merit increases, an increase in pension costs of $256,000 and an increase in health insurance and other employee related costs partially offset by a decrease in deferred compensation expense referred to in the non-interest income section above. Occupancy and equipment expenses declined $91,000 or 5.8% to $1,491,000 for the first nine months of 2002, from $1,582,000 for the same period last year. This decrease is due in part to the construction of one new branch and the purchase of another branch, replacing existing leases and thus reducing net occupancy expenses. Professional services expense increased $83,000 or 24.3% to $424,000 for the first nine months of 2002, from $341,000 for the same period last year. The increase is due primarily to higher legal and audit fees. Amortization of intangibles expense decreased $216,000 for the first nine months of 2002, compared to the same period last year. This expense decreased for the following reasons: 1. The deposit acquisition premium that the Bank recorded in 1992 in connection with its acquisition of the deposits and certain assets of the former Central Savings Bank, Lowell was fully amortized in February 2002. 2. On January 1, 2002 the Company adopted Statement of Financial Accounting Standard ("SFAS") No. 142, "Goodwill and Other Intangible Assets." SFAS 142 requires that upon adoption of the Statement, any Goodwill recorded on a company's balance sheet would no longer be amortized, but be reviewed for impairment periodically or upon the occurrence of certain triggering events. At January 1, 2002 the Company had $1,090,000 of goodwill on its balance sheet that was previously being amortized at a rate of $25,000 per quarter. All other non-interest expenses combined, consisting of data processing, advertising and marketing, deposit insurance and other expenses, totaled $1,648,000 for the nine months ended September 30, 2002, unchanged from the same period last year. Income Tax Expense The provision for federal and state income taxes decreased to $4,254,000 for the nine months ended September 30, 2002 from $4,484,000 for the same period in 2001. This decrease is due primarily to lower income before income taxes in the first nine months of 2002 partially offset by a slight increase in the Company's effective income tax rate. The Company's combined effective income tax rate for the first nine months of 2002 is 36.0% compared to 35.7% for the same period a year ago. The Company's income before income taxes was $11,816,000 for the first nine months of 2002 compared to $12,549,000 for the first nine months of 2001. 25 Financial Condition The Company's total assets amounted to $1.004 billion as of September 30, 2002, an increase of $32.7 million or 3.4% from $971.2 million at December 31, 2001. This reflects an increase in total investments of $33.6 million or 3.4% and a decrease in the Bank's loan portfolio of $3.4 million or less than 1%. Cash and due from banks increased $1.2 million and all other assets increased $1.3 million. Loans The loan portfolio decreased $3.4 million or less than 1% in the first nine months of 2002. This includes a decline in commercial loans of $15.0 million due to a loan with a single borrower that was repaid. At September 30, 2002, the loan portfolio, net of allowance for loan losses, was $324.9 million representing 32.4% of total assets compared to $328.4 million representing 33.8% of total assets at December 31, 2001. The majority of loans in the portfolio are residential mortgages. Residential mortgages amounted to $307.1 million at September 30, 2002, representing 93.7% of the total loan portfolio. See page 32 of this Form 10-Q for a table setting forth the composition of the loan portfolio at September 30, 2002 and year-end 2001. Lower interest rates in the first nine months of 2002 when compared to the same period last year resulted in higher mortgage loan refinancing activity and increased loan origination growth for the Bank. In the first nine months of 2002, the Bank originated loans of $75.8 million, an increase of $4.2 million or 5.9% from the $71.6 million in loans originated in the first nine months of last year. Asset Quality Asset quality remains strong. Non-accrual loans, generally those loans which are 90 days or more delinquent, were $327 thousand and $644 thousand, respectively, at September 30, 2002 and December 31, 2001. This represents 0.10% of total loans at September 30, 2002. The Bank's allowance for loan losses at September 30, 2002 totaled $2.6 million, representing 808% of non-accrual loans and 0.81% of total loans. The Bank believes that its allowance for loan losses is adequate to cover the risks inherent in the loan portfolio under current conditions. However, various regulatory agencies, as an integral part of their examination process, periodically review the Bank's allowance for loan losses. Such agencies may require the Bank to recognize additions to the allowance based on judgments different from those of management. The Bank has no real estate acquired through foreclosure at September 30, 2002. 26 Financial Condition (continued) Deposits Deposits have historically been the Bank's primary source of funds for lending and investment activities. Deposit flows vary significantly and are influenced by prevailing interest rates, market conditions, economic conditions and competition. The Bank's management attempts to manage its deposits through selective pricing and marketing. Deposits increased $29.8 million or 3.5% to $879.5 million at September 30, 2002 from $849.7 million at December 31, 2001. This increase was primarily the result of an increase in savings and money market account deposits of $131.6 million or 34.3%, partially offset by a decrease in time certificates of deposit of $102.1 million or 26.6%. Other deposits grew by $0.3 million during the first nine months of 2002. For information concerning the composition of the Bank's deposits at September 30, 2002 and year-end 2001, see page 35 of this Form 10-Q. Stockholders Equity Total stockholders' equity increased to $117.7 million at September 30, 2002, representing a book value per share of $25.18, from $114.9 million representing a book value per share of $24.34 at December 31, 2001. The Company's book value per share as of year-end 2001 has been adjusted to reflect the three-for-two split of the Company's common stock on April 19, 2002. Investments At September 30, 2002, the Company's investment portfolio, consisting of investment securities (including mortgage-backed securities), short-term investments and interest-bearing bank deposits totaled $652.2 million representing 65.0% of total assets, compared to $618.5 million or 63.7% of total assets at December 31, 2001. The investment securities portfolio included U.S. government and agency obligations, mortgage-backed securities and collateralized mortgage obligations. The Bank also maintains an equity securities portfolio, valued at $13.3 million as of September 30, 2002, that has yielded substantial realized and unrealized gains in recent years. While the Company's equity securities portfolio has produced significant realized gains in recent years, management does not expect this to continue under current market conditions. The Company expects that opportunities for securities gains from the equity portfolio will be substantially reduced in future quarters. In addition, if these market conditions persist or deteriorate further, the Company may incur losses on the sales of its equity securities. For further information concerning the composition, maturity and market value of the Bank's investment securities, see pages 29 through 31 of this Form 10-Q. 27 Financial Condition - Investments (continued) Nearly all of the Bank's investment securities are classified as available for sale or trading securities. Management evaluates its investment alternatives in order to properly manage the mix of assets on its balance sheet. Investment securities available for sale and trading securities provide liquidity, facilitate interest rate sensitivity management and enhance the Bank's ability to respond to customers' needs should loan demand increase and/or deposits decline. The Bank continues to maintain a large proportion of its securities portfolio in government agency mortgage-backed securities. These represent an attractive investment with minimal credit risk, no servicing responsibilities, and no delinquencies. The Bank's investment in mortgage-backed securities totaled $219.5 million at September 30, 2002 versus $265.0 million at year-end 2001. This decrease is due largely to the prepayments received during this period of low interest rates. The Bank also maintains a portfolio of trading securities which consisted of the following as of the dates shown: September 30, December 31, (In thousands) 2002 2001 ------------- ------------ U.S. Treasury obligations $27,387 $ 3,086 Investments in mutual funds 3 3 ------ ------- Total $27,390 $ 3,089 28 FINANCIAL CONDITION INVESTMENT SECURITIES The amortized cost and estimated market value of investment securities at September 30, 2002 with gross unrealized gains and losses, follows:
- ----------------------------------------------------------------------------------------- Gross Gross Amortized Unrealized Unrealized Market (In thousands) At September 30, 2002 Cost Gains Losses Value - ----------------------------------------------------------------------------------------- Securities available for sale: Debt securities: U.S. Treasury obligations $ 92,548 $ 2,266 $ -- $ 94,814 U.S. Government agency obligations 67,137 723 (6) 67,854 - ----------------------------------------------------------------------------------------- Total 159,685 2,989 (6) 162,668 - ----------------------------------------------------------------------------------------- Mortgage-backed securities: Government National Mortgage Association 17,069 1,209 -- 18,278 Federal Home Loan Mortgage Corporation 189,504 10,043 -- 199,547 Federal National Mortgage Association 857 35 -- 892 Collateralized mortgage obligations 740 18 -- 758 - ----------------------------------------------------------------------------------------- Total mortgage-backed securities 208,170 11,305 -- 219,475 - ----------------------------------------------------------------------------------------- Total debt securities 367,855 14,294 (6) 382,143 - ----------------------------------------------------------------------------------------- Equity securities 16,129 259 (3,091) 13,297 - ----------------------------------------------------------------------------------------- Total securities available for sale 383,984 $ 14,553 $ (3,097) $395,440 - ----------------------------------------------------------------------------------------- Net unrealized gains on securities available for sale 11,456 - ----------------------------------------------------------------------------------------- Total securities available for sale, net 395,440 - ----------------------------------------------------------------------------------------- Total investment securities, net $395,440 - ----------------------------------------------------------------------------------------- Trading securities $ 27,335 $ 27,390 - -----------------------------------------------------------------------------------------
29 FINANCIAL CONDITION INVESTMENT SECURITIES (continued) The amortized cost and estimated market value of investment securities at December 31, 2001 with gross unrealized gains and losses, follows:
- ----------------------------------------------------------------------------------------- Gross Gross Amortized Unrealized Unrealized Market (In thousands) At December 31, 2001 Cost Gains Losses Value - ----------------------------------------------------------------------------------------- Securities available for sale: Debt securities: U.S. Treasury obligations $ 79,932 $ 1,165 $ (214) $ 80,883 U.S. Government agency obligations 10,142 115 (4) 10,253 - ----------------------------------------------------------------------------------------- Total 90,074 1,280 (218) 91,136 - ----------------------------------------------------------------------------------------- Mortgage-backed securities: Government National Mortgage Association 22,499 1,025 -- 23,524 Federal Home Loan Mortgage Corporation 231,603 7,062 (31) 238,634 Federal National Mortgage Association 1,346 38 (1) 1,383 Collateralized mortgage obligations 1,452 38 -- 1,490 - ----------------------------------------------------------------------------------------- Total mortgage-backed securities 256,900 8,163 (32) 265,031 - ----------------------------------------------------------------------------------------- Total debt securities 346,974 9,443 (250) 356,167 - ----------------------------------------------------------------------------------------- Equity securities 15,102 3,931 (2,616) 16,417 - ----------------------------------------------------------------------------------------- Total securities available for sale 362,076 $13,374 $(2,866) $372,584 - ----------------------------------------------------------------------------------------- Net unrealized gains on securities available for sale 10,508 - ----------------------------------------------------------------------------------------- Total securities available for sale, net 372,584 - ----------------------------------------------------------------------------------------- Total investment securities, net $372,584 - ----------------------------------------------------------------------------------------- Trading securities $ 3,089 $ 3,089 - -----------------------------------------------------------------------------------------
30 Investments (continued) The amortized cost and estimated market value of debt securities available for sale by contractual maturity at September 30, 2002 and December 31, 2001 are shown in the following tables. Actual maturities will differ from contractual maturities because of callable government agency securities in the Bank's portfolio that may be called prior to maturity. September 30, 2002 ------------------------- Available for Sale Amortized Market Maturing: Cost Value (In thousands) Within 1 year $ 23,067 $ 23,426 After 1 year but within 5 years 132,481 135,026 After 5 years but within 10 years 4,000 4,082 After 10 years but within 15 years 137 134 -------- -------- U.S. Treasury and Government agency obligations (a) 159,685 162,668 Mortgage-backed securities 208,170 219,475 -------- -------- Total $367,855 $382,143 December 31, 2001 ------------------------- Available for Sale Amortized Market Maturing: Cost Value (In thousands) Within 1 year $ 28,993 $ 29,531 After 1 year but within 5 years 60,939 61,467 After 15 years 142 138 -------- -------- U.S. Treasury and Government agency obligations (b) 90,074 91,136 Mortgage-backed securities 256,900 265,031 -------- -------- Total $346,974 $356,167 (a) At September 30, 2002 the Bank's debt securities available for sale portfolio included $67,000,000 (amortized cost) in callable securities with a market value of $67,720,000. (b) At December 31, 2001 the Bank's debt securities available for sale portfolio included $4,000,000 (amortized cost) in callable securities with a market value of $4,045,000. 31 LOANS The composition of the Bank's loan portfolio is summarized as follows:
- --------------------------------------------------------------------------------------- At At (In thousands) September 30, 2002 December 31, 2001 - --------------------------------------------------------------------------------------- Mortgage loans: Residential $307,283 $294,023 Commercial 2,464 2,641 Construction 844 993 - --------------------------------------------------------------------------------------- 310,591 297,657 Premium on loans 22 51 Deferred mortgage loan origination fees (1,054) (1,239) - --------------------------------------------------------------------------------------- Total mortgage loans 309,559 296,469 Other loans: Consumer: Installment 964 1,178 Guaranteed education 3,790 4,937 Other secured 696 873 Home equity lines of credit 12,261 12,271 Unsecured 203 201 - --------------------------------------------------------------------------------------- Total consumer loans 17,914 19,460 Commercial 115 15,088 - --------------------------------------------------------------------------------------- Total other loans 18,029 34,548 - --------------------------------------------------------------------------------------- Total loans $327,588 $331,017 - ---------------------------------------------------------------------------------------
The Bank's loan portfolio decreased $3.4 million in the first nine months of 2002, from $331.0 million at December 31, 2001 to $327.6 million at September 30, 2002. Mortgage loans increased $13.1 million, however, this increase was offset by a decrease in consumer loans of $1.5 million and a decrease of $15.0 million in commercial loans. The decrease in commercial loans is due to a loan with a single borrower that was repaid in the second quarter 2002. The loan was refinanced with another financial institution. Loan originations in the recent quarter increased slightly from the second quarter 2002 to $21.5 million from $18.1 million. However, this reflects a reduction from the $27.7 million in loans originated in the third quarter of last year. Much of the Bank's loan origination volume is due to mortgage refinancing. The Bank's mortgage refinancing volume declined in the third quarter of 2002 compared to the third quarter of 2001, despite lower interest rates. This was partly due to the Bank's less aggressive pricing strategy during the recent quarter due to the continuing decline in mortgage interest rates. Loan originations increased by $4.2 million to $75.8 million in the first nine months of 2002 compared to $71.6 million in the first nine months of last year. 32 NON-PERFORMING ASSETS The following table shows the composition of the Bank's non-performing assets at September 30, 2002 and 2001, and December 31, 2001:
At At At September 30, December 31 September 30, (In thousands) 2002 2001 2001 - ----------------------------------------------------------------------------------- Non-Performing Assets: Non-accrual loans $ 327 $ 644 $ 566 Real estate acquired through foreclosure -- -- -- - ----------------------------------------------------------------------------------- Total non-performing assets $ 327 $ 644 $ 566 - ----------------------------------------------------------------------------------- Allowance for loan losses $ 2,641 $ 2,643 $ 2,614 Allowance as a percent of non-accrual loans 807.6 % 410.4 % 461.8 % Allowance as a percent of non-performing assets 807.6 % 410.4 % 461.8 % Non-accrual loans as a percent of total loans 0.10% 0.19% 0.17% Non-performing assets as a percent of total assets 0.03% 0.07% 0.06% - -----------------------------------------------------------------------------------
The Bank generally does not accrue interest on loans which are 90 days or more past due. It is the Bank's policy to place such loans on non-accrual status and to reverse from income all interest previously accrued but not collected and to discontinue all amortization of deferred loan fees. Non-performing assets decreased from December 31, 2001 to September 30, 2002 as noted in the table above. The principal balance of non-accrual loans was down to $327,000, or approximately 0.10% of total loans at September 30, 2002. The Bank did not have any impaired loans as of September 30, 2002. 33 ALLOWANCE FOR LOAN LOSSES An analysis of the activity in the allowance for loan losses is as follows: Nine Months Ended September 30, 2002 2001 - -------------------------------------------------------------------------------- (In thousands) Balance at beginning of period $ 2,643 $ 2,594 Provision for loan losses -- 36 Recoveries of loans previously charged-off 1 1 Charge-offs (3) (17) - -------------------------------------------------------------------------------- Balance at end of period $ 2,641 $ 2,614 - -------------------------------------------------------------------------------- The Company maintains an allowance for probable losses that are inherent in the Company's loan portfolio. The allowance for loan losses is increased by provisions charged to operations based on the estimated loan loss exposure inherent in the portfolio. Management uses a methodology to systematically measure the amount of estimated loan loss exposure inherent in the portfolio for purposes of establishing a sufficient allowance for loan losses. The methodology includes three elements: an analysis of individual loans deemed to be impaired in accordance with the terms of Statement of Financial Accounting Standard No. 114, "Accounting by Creditors for Impairment of a Loan," general loss allocations for various loan types based on loss experience factors and an unallocated allowance which is maintained based on management's assessment of many factors including the risk characteristics of the portfolio, concentrations of credit, current and anticipated economic conditions that may affect the borrower's ability to pay, and trends in loan delinquencies and charge-offs. Realized losses, net of recoveries, are charged directly to the allowance. While management uses the information currently available in establishing the allowance for loan losses, future adjustments to the allowance may be necessary if economic conditions differ from the assumptions used in making the evaluation. In addition, various regulatory agencies, as an integral part of their examination process, periodically review the Bank's allowance for loan losses. Such agencies may require the Bank to recognize additions to the allowance based on judgments different from those of management. At September 30, 2002 the balance of the allowance for loan losses was $2,641,000 representing 807.6% of non-accrual loans. Management believes that the allowance for loan losses is adequate to cover the risks inherent in the portfolio under current conditions. 34 DEPOSITS Deposit accounts of all types have traditionally been the primary source of funds for the Bank's lending and investment activities. The Bank's deposit flows are influenced by prevailing interest rates, competition and other market conditions. The Bank's management attempts to manage its deposits through selective pricing and marketing. The Bank's total deposits increased by $29.8 million to $879.5 million at September 30, 2002 from $849.7 million at December 31, 2001. For core deposit growth, the Company has emphasized its tiered rate smart savings account and its high rate silver savings account for bank customers that are age 65 and over. Most of the growth in deposits during the first nine months of 2002 has been in these accounts. During this period, savings and money market accounts increased $131.6 million as depositors shifted from certificates of deposits to savings accounts for increased liquidity in this low interest rate environment. The Bank's deposits also grew as some depositors sought a safe harbor from the equity markets. In the event the equity markets reverse, this could result in deposit outflow for the Bank. The shift to savings accounts contributed to the decrease in time certificates of deposit from $383.6 million at December 31, 2001 to $281.5 million at September 30, 2002. The composition of the Bank's total deposits as of the dates shown are summarized as follows: September 30, December 31, 2002 2001 - ------------------------------------------------------------------------------ (In thousands) Demand and NOW $ 82,512 $ 82,143 Savings and money market accounts 515,535 383,960 Time certificates of deposit 281,469 383,610 Deposit acquisition premium, net of amortization -- (29) - ------------------------------------------------------------------------------ Total deposits $879,516 $849,684 - ------------------------------------------------------------------------------ Recent Accounting Developments "Goodwill and Other Intangible Assets" In July 2001, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standard ("SFAS") No. 142, "Goodwill and Other Intangible Assets." SFAS 142 requires that upon adoption of the Statement, any goodwill recorded on an entity's balance sheet would no longer be amortized. This would include existing goodwill (i.e., recorded goodwill at the date the financial statement is issued), as well as goodwill arising subsequent to the effective date of the Statement. Goodwill will not be amortized but will be reviewed for impairment periodically or upon the occurrence of certain triggering events. This Statement is effective for fiscal years beginning after December 15, 2001. The Company adopted the new standard on January 1, 2002. At September 30, 2002, the Company had $1,090,000 of goodwill on its balance sheet. 35 PART I. ITEM 3 Quantitative and Qualitative Disclosures About Market Risk Market Risk Market risk is the risk of loss in a financial instrument arising from adverse changes in prices. The Company's investment securities portfolio includes equity securities with a market value of approximately $13.3 million at September 30, 2002. Movements in equity prices affect the value of the equity portfolio and affect the amount of securities gains or losses that the Company realizes from the sale of equity securities. The Company's debt securities portfolio has a market value of approximately $382.1 million at September 30, 2002. Interest rate changes affect the value of the debt securities portfolio. Rising interest rates would generally reduce the value of the debt securities portfolio. Interest Rate Risk Interest rate risk represents the sensitivity of earnings to changes in market interest rates. As interest rates change the interest income and expense streams associated with the Company's financial instruments also change thereby impacting net interest income, the primary component of the Company's earnings. The ongoing monitoring and management of this risk is an important component of the Company's asset/liability management process. For additional information about the Company's asset/liability management and interest rate risk, see the Management Discussion and Analysis section of the Company's Form 10-K for the year ended December 31, 2001. Liquidity and Capital Resources The Bank must maintain a sufficient amount of cash and assets which can readily be converted into cash in order to meet cash outflows from normal depositor requirements and loan demands. The Bank's primary sources of funds are deposits, loan and mortgage-backed securities amortization and prepayments, sales or maturities of investment securities, investment securities called before maturity and income on earning assets. In addition to loan payments and maturing investment securities, which are relatively predictable sources of funds, the Bank maintains a high percentage of its assets invested in overnight federal funds sold and money market funds, which can be immediately converted into cash and United States Treasury and Government agency securities, which can be sold or pledged to raise funds. At September 30, 2002 the Bank had $225.2 million or 22.4% of total assets and $190.1 million or 18.9% of total assets invested, respectively, in overnight federal funds sold and money market funds, and United States Treasury and Government agency obligations. The Bank is a Federal Deposit Insurance Corporation ("FDIC") insured institution subject to the FDIC regulatory capital requirements. The FDIC regulations require all FDIC insured institutions to maintain minimum levels of Tier 1 capital. Highly rated banks (i.e., those with a composite rating of 1 under the CAMELS rating system) are required to maintain a minimum leverage ratio of Tier 1 capital to total assets of at least 3.00%. An additional 100 to 200 basis points are required for all but these most highly rated institutions. The Bank is also required to maintain a minimum level of risk-based capital. Under the risk-based capital standards, FDIC insured institutions must maintain a Tier 1 capital to risk-weighted assets ratio of 4.00% and are generally expected to meet a minimum total qualifying capital to risk-weighted assets ratio of 8.00%. The risk-based capital guidelines take into consideration risk factors, as defined by the regulators, associated with various categories of assets, both on and off the balance sheet. Under the guidelines, capital strength is measured in two tiers which are used in conjunction with risk adjusted assets to determine the risk-based capital 36 Liquidity and Capital Resources (continued) ratios. Tier II components include supplemental capital components such as qualifying allowance for loan losses and qualifying subordinated debt and up to 45 percent of the pre-tax net unrealized holding gains on certain available for sale equity securities. Tier I capital plus the Tier II capital components are referred to as total qualifying capital. The capital ratios of the Bank and the Company currently exceed the minimum regulatory requirements. At September 30, 2002, the Bank had a leverage Tier I capital to total assets ratio of 10.17%, a Tier I capital to risk- weighted assets ratio of 30.11% and a total capital to risk-weighted assets ratio of 30.89%. The Company, on a consolidated basis, had ratios of leverage Tier I capital to total assets of 10.87%, Tier I capital to risk-weighted assets of 32.15% and total capital to risk-weighted assets of 32.94% at September 30, 2002. Impact Of Inflation And Changing Prices MASSBANK Corp.'s financial statements presented herein have been prepared in accordance with generally accepted accounting principles which require the measurement of financial position and operating results in terms of historical dollars, without considering changes in the relative purchasing power of money over time, due to the fact that substantially all of the assets and liabilities of a financial institution are monetary in nature. As a result, interest rates have a more significant impact on a financial institution's performance than the effects of general levels of inflation. Interest rates do not necessarily move in the same direction or in the same magnitude as the prices of goods and services. PART I. ITEM 4 Disclosure Controls and Procedures MASSBANK Corp. evaluated the design and operation of its disclosure controls and procedures to determine whether they are effective in ensuring that the disclosure of required information is timely made in accordance with the Exchange Act and the rules and forms of the Securities and Exchange Commission. This evaluation was made with the participation of MASSBANK Corp.'s principal executive officer and principal financial officer within the 90-day period prior to the filing of this Quarterly Report on Form 10-Q. The principal executive officer and principal financial officer have concluded, based on their review, that MASSANK Corp.'s disclosure controls and procedures, as defined at Exchange Act Rules 13(a)-14(c) and 15d-14(c) are effective to ensure that information required to be disclosed by MASSBANK Corp. in reports that it files under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission rules and forms. No significant changes were made to MASSBANK Corp.'s internal controls or other factors that could significantly affect these controls subsequent to the date of their evaluation. 37 PART II - OTHER INFORMATION Item 1. Legal Proceedings From time to time, MASSBANK Corp. and/or the Bank are involved as a plaintiff or defendant in various legal actions incident to their business. As of September 30, 2002, none of these actions individually or in the aggregate is believed by management to be material to the financial condition of MASSBANK Corp. or the Bank. Item 2. Changes in Securities Not Applicable. Item 3. Defaults Upon Senior Securities Not Applicable. Item 4. Submission of Matters to a Vote of Security Holders None Item 5. Other Information None. Item 6. Exhibits and Reports on Form 8-K a. Exhibit Index: Exhibit Number: 10.3.16 Amended and Restated Employment Agreement with Gerard H. Brandi dated as of October 28, 2002. 10.3.17 Amended and Restated Employment Agreement with David F. Carroll dated as of October 28, 2002. 10.3.18 Amended and Restated Employment Agreement with Reginald E. Cormier dated as of October 28, 2002. 10.3.19 Amended and Restated Employment Agreement with Donald R. Washburn dated as of October 28, 2002. 10.3.20 Amended and Restated Employment Agreement with Donna H. West dated as of October 28, 2002. 10.3.21 Form of Employment Agreement with Thomas J. Queeney dated as of October 28, 2002. 11 Statement regarding computation of per share earnings. b. Reports on Form 8-K None. 38 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. MASSBANK Corp. & Subsidiaries ----------------------------- (Registrant) Date: November 13, 2002 /s/ Gerard H. Brandi --------------------------- (Signature) Gerard H. Brandi President and CEO Date: November 13, 2002 /s/ Reginald E. Cormier --------------------------- (Signature) Reginald E. Cormier Sr. V.P., Treasurer and CFO 39 CERTIFICATIONS I, Gerard H. Brandi certify that: 1. I have reviewed this quarterly report on Form 10Q of MASSBANK Corp. 2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; 3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; 4. The registrant's other certifying officers, and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have: - designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; - evaluated the effectiveness of the registrant's disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the "Evaluation Date")' and - presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors: - all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal controls; and - any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls; and 6. The registrant's other certifying officers and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. Date: November 13, 2002 /s/ Gerard H. Brandi ------------------------------------- Gerard H. Brandi, President and CEO (principal executive officer) 40 CERTIFICATIONS I, Reginald E. Cormier certify that: 1. I have reviewed this quarterly report on Form 10Q of MASSBANK Corp. 2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; 3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; 4. The registrant's other certifying officers, and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have: - designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; - evaluated the effectiveness of the registrant's disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the "Evaluation Date")' and - presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors: - all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal controls; and - any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls; and 6. The registrant's other certifying officers and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. Date: November 13, 2002 /s/ Reginald E. Cormier ---------------------- Reginald E. Cormier, Sr. V.P., Treasurer & CFO (principal financial officer) 41 EX-10.3.16 3 dex10316.txt AMENDED EMPLOYMENT AGREEMENT, GERARD H. BRANDI EXHIBIT 10.3.16 AMENDED AND RESTATED EMPLOYMENT AGREEMENT This Amended and Restated Employment Agreement ("Agreement") is made as of the 28th day of October, 2002, by and between MASSBANK, a Massachusetts savings bank with its main office in Reading, Massachusetts (the "Bank"), MASSBANK Corp., a Delaware corporation (the "Company"), and Gerard H. Brandi of Lynnfield, Massachusetts (the "Executive"). The Company and the Bank shall hereinafter be collectively referred to as the "Employers." WITNESSETH WHEREAS, the Employers and the Executive entered into an Employment Agreement dated as of May 28, 1986, as modified and amended by the Employment Agreement dated as of December 2, 1986, and as further modified and amended by the First Amendment to Employment Agreement dated as of January 15, 1991, the Second Amendment to Employment Agreement dated as of February 1, 1993 and the Third Amendment to Employment Agreement dated as of December __, 1993 (as so modified and amended, the "Employment Agreement"); WHEREAS, the Employers and the Executive entered into an Executive Severance Agreement, dated as of January 18, 1994 (the "Severance Agreement"); WHEREAS, the Employers and the Executive entered into an Executive Supplemental Retirement Agreement, dated as of December 2, 1986 (as amended, the "SERP"); WHEREAS, the Executive participates in the Bank's Deferred Compensation Program (the "Deferred Compensation Program"); WHEREAS, the parties hereto desire to provide for the Executive's continued employment by the Employers and to delineate the Executive's and the Employer's rights and obligations arising in connection therewith, including in the event of a Change in Control (as defined herein) subject to the amended terms and conditions set forth herein; and WHEREAS, the parties hereto intend that this Agreement shall be an amendment and restatement of the Employment Agreement and the Severance Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Employers and the Executive agree as follows: 1. Employment. The Employers agree to employ the Executive and the Executive agrees to serve in the employ of the Employers on the terms and conditions hereinafter set forth. 2. Capacity. The Executive agrees to continue to serve as President and Chief Executive Officer of the Company and the Bank. The Executive also agrees to serve as Chairman of the Board of Directors of either or both of the Employers should the Executive be elected to such position(s) by the respective Boards of Directors. In the capacities referred to in the two preceding sentences, the Executive shall have such powers, responsibilities and duties as are set forth herein or determined pursuant to applicable law and the Employers' charters and Bylaws. 3. Effective Date and Term. Subject to the applicable provisions herein, the term of this Agreement shall extend until the third anniversary of the date hereof; provided, however, that the term of this Agreement shall be extended automatically by an additional one day commencing on the first day following the date hereof and on each subsequent day thereafter, unless either the Executive or the Employers give written notice to the other of such party's election not to extend the term of this Agreement. The last day of such term, as so extended from time to time, is herein sometimes referred to as the "Expiration Date." 4. Compensation and Benefits. The regular compensation and benefits payable to the Executive under this Agreement shall be as follows: (a) Salary. For all services rendered by the Executive under this Agreement, the Employers shall pay the Executive a salary equal to his present salary, subject to increase from time to time in accordance with the usual practices of the Employers with respect to review of compensation of their senior executives. The Executive's salary shall be payable in periodic installments in accordance with the Employers' usual practices for their senior executives. (b) Regular Benefits. The Executive shall also be entitled to participate in any and all employee benefit plans, medical insurance plans, life insurance plans, disability income plans, retirement plans, bonus incentive plans and other benefit plans from time to time in effect for senior executives of the Employers. Such participation shall be subject to (i) the terms of the applicable plan documents, (ii) generally applicable policies of the Employers and (iii) the discretion of the respective Boards of Directors of the Employers or any administrative or other committee provided for in or contemplated by such plan. The Executive also shall be entitled to receive benefits which are the same or substantially similar to those which are currently being provided to the Executive by the Bank, including without limitation use of an automobile appropriate for his position and membership in a health club. In addition, the Executive shall be entitled to receive reasonable expenses for the costs associated with his individual tax and financial planning and for the preparation and periodic review of his estate plan. (c) Business Expenses. The Employers shall reimburse the Executive for all reasonable travel and other business expenses incurred by him in the performance of his duties and responsibilities, subject to such reasonable requirements with respect to substantiation and documentation as may be specified by the Employers. (d) Vacation. The Executive shall be entitled to vacation in accordance with the Employers' usual practices for their senior executives. 5. Extent of Service. During his employment hereunder, the Executive shall, subject to the direction and supervision of the Employers' respective Boards of Directors, devote his full business time, best efforts and business judgment, skill and knowledge to the advancement of the 2 interests of the Employers and to the discharge of his duties and responsibilities hereunder. He shall not engage in any other business activity, except as may be approved by said Boards of Directors; provided, however, that nothing herein shall be construed as preventing the Executive from: (a) Investing his assets in a manner not prohibited by Section 8(a) hereof, and in such form or manner as shall not require any material services on his part in the operations or affairs of the companies or other entities in which such investments are made; (b) Serving on the board of directors of any company, subject to the prohibitions set forth in Section 8(a) and provided that he shall not be required to render any material services with respect to the operations or affairs of any such company; or (c) Engaging in religious, charitable or other community or non-profit activities which do not impair his ability to fulfill his duties and responsibilities under this Agreement. 6. Termination. Notwithstanding the provisions of Section 3 hereof, the Executive's employment hereunder may be terminated without any breach of this Agreement under the following circumstances: (a) Death. In the event of the Executive's death during the Executive's employment hereunder, the Executive's employment shall terminate on the date of his death; provided, however, that the Employers shall thereafter comply with the Executive Supplemental Retirement Agreement dated as of December 2, 1986, among the parties hereto, and as amended from time to time. (b) Disability. If, due to physical or mental illness, the Executive shall be disabled so as to be unable to perform substantially all of his duties and responsibilities hereunder, the Employers, acting through their respective Boards of Directors, may designate another executive to act in his place during the period of such disability. In the event of the Executive's "disability" during the Executive's employment hereunder, the Executive's employment may be terminated by the Employers. For purposes of this Agreement, "disability" shall mean the Executive's incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his duties with the Employers for a period of six consecutive months if the Employers shall have given the Executive a Notice of Termination and, within 30 days after such Notice of Termination is given, the Executive shall not have returned to the full-time performance of his duties. If any question shall arise as to whether during any period the Executive was disabled so as to be unable to perform substantially all of his duties and responsibilities hereunder due to physical or mental illness, the Executive may, and at the request of the Employers will, submit to the Employers a certification in reasonable detail by a physician selected by the Executive or his guardian to whom the Employers have no reasonable objection as to whether the Executive was so disabled and such certification shall for the purposes of this Agreement be conclusive of the issue. If such question shall arise and the Executive shall fail to submit such certification, the Employers' determination of such issue shall be binding on the Executive. 3 (c) Termination by the Employers for Cause. The Executive's employment hereunder may be terminated without further liability on the part of the Employers effective immediately by a two-thirds vote of all of the members of each of the Employers' respective Boards of Directors for cause by written notice to the Executive setting forth in reasonable detail the nature of such cause. Only the following shall constitute "cause" for such termination: (i) Deliberate dishonesty of the Executive with respect to either of the Employers or any subsidiary or affiliate thereof; (ii) Conviction of the Executive of a crime involving moral turpitude; or (iii) Gross and willful failure to perform a substantial portion of his duties and responsibilities hereunder, which failure continues for more than thirty days after written notice given to the Executive pursuant to a two-thirds vote of all of the members of each of the Employers' respective Boards of Directors, such vote to set forth in reasonable detail the nature of such failure. For purposes of clause (i) of this Section 6(c), 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 interest of the Employers and their subsidiaries and affiliates. (d) Termination by the Employers Without Cause. The Executive's employment with the Employers may be terminated by: (i) A two-thirds vote of all of the members of each of the Employers' respective Boards of Directors on written notice to the Executive; or (ii) Following a Change in Control, an election not to extend the term of this Agreement. Any such termination of Executive's employment shall be deemed to be a termination "without cause" for purposes of this Agreement. (e) Termination by the Executive. The Executive's employment hereunder may be terminated effective immediately by the Executive by written notice to each of the Employers' respective Boards of Directors at any time, including for Good Reason. For purposes of this Agreement, Good Reason shall mean the occurrence of any of the following events: (i) Failure of the respective Boards of Directors to elect the Executive to, or the removal of the Executive from, any of the offices of President and Chief Executive Officer of the Company and the Bank; (ii) Following a Change in Control, the occurrence of (A) a significant change in the nature or scope of the Executive's responsibilities, authorities, powers, reporting relationship, functions or duties from the responsibilities, authorities, powers, reporting relationship, functions or duties exercised by the Executive 4 immediately prior to a Change in Control, (B) a reasonable 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 (C) a decrease in the total annual compensation payable by the Employers to the Executive; (iii) Following a Change in Control, the relocation of the Employers' offices at which the Executive is principally employed immediately prior to the date of a Change in Control to a location more than 25 miles from such offices, or the requirement by the Employers for the Executive to be based anywhere other than the Employers' offices at such location, except for required travel on the Employers' business to an extent substantially consistent with the Executive's business travel obligations immediately prior to the Change in Control; (iv) The failure by the Employers to pay to the Executive any portion of his compensation or to pay to the Executive any portion of an installment of deferred compensation under any deferred compensation program of the Employers within 15 days of the date such compensation is due without prior written consent of the Executive; (v) Breach by the Employers of any provision of this Agreement, the SERP or any other agreement that may exist from time to time between the Employers and the Executive that provides for the payment of any compensation or benefits to Executive; or (vi) The failure by the Employers to obtain and deliver to the Executive an effective agreement from any successor to assume and agree to perform this Agreement. (f) Notice of Termination. Except for termination as specified in Section 6(a), any termination of Executive's employment by the Employers or any such termination by Executive shall be communicated by written Notice of Termination to the other party hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon. (g) Date of Termination. "Date of Termination" shall mean: (A) if Executive's employment is terminated by his death, the date of his death; (B) if Executive's employment is terminated on account of disability under Section 6(b) or by the Employers for Cause under Section 6(c), the date on which Notice of Termination is given; (C) if Executive's employment is terminated by the Employers under Section 6(d), 60 days after the date on which a Notice of Termination is given; and (D) if Executive's employment is terminated by Executive under Section 6(e), 30 days after the date on which a Notice of Termination is given. (h) For purposes of this Agreement, a "Change in Control" shall be deemed to have occurred in any one of the following events: (i) Any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Act) (other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of 5 the Company, or any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities; (ii) Persons who, as of October 1, 2002, constituted the Company's Board of Directors (the "Incumbent Board") 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 of Directors of the Company, provided that any person becoming a director of the Company subsequent to October 1, 2002, whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Agreement, be considered a member of the Incumbent Board; (iii) The stockholders of the Company approve a merger or consolidation of the Company with any other corporation or other entity, 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 isurviving entity) more than 60% 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 than 50% of the combined voting power of the Company's then outstanding securities; or (iv) The stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. 7. Compensation Upon Termination. (a) Termination Due to Death. If Executive's employment terminates by reason of his death, the Employers shall, within 90 days of death, pay in a lump sum cash payment to such person as Executive shall designate in a notice filed with the Employers or, if no such person is designated, to Executive's estate, Executive's accrued and unpaid salary to the date of his death, plus his accrued and unpaid incentive compensation, if any. Upon the death of Executive, all unvested stock options granted to Executive shall immediately vest in Executive's estate or other legal representatives and become exercisable, and Executive's estate or other legal representatives shall have one year from the Date of Termination, to exercise all stock options granted to Executive. All other stock-based grants and awards held by Executive shall vest or be canceled upon the death of Executive in accordance with their terms. For a period of one year following the Date of Termination, the Employers shall pay such health insurance premiums as may be necessary to allow Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination. In addition to the foregoing, any payments to which Executive's spouse, beneficiaries, or estate may be entitled under any employee benefit plan shall also be paid in 6 accordance with the terms of such plan or arrangement. Such payments, in the aggregate, shall fully discharge the Employers' obligations hereunder. (b) Disability. In the event of termination pursuant to Section 6(b), the Employers shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus his accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 7(b)) in a form and manner satisfactory to the Employers: (i) The Executive shall continue to receive his full salary under Section 4(a) of this Agreement until the earlier of his death, his becoming eligible for disability income under the Employers' disability income plan or three years following the Date of Termination; (ii) For a period of three years following the Date of Termination, the Employers shall pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received prior to the Date of Termination; and (iii) All unvested stock options granted to Executive shall immediately vest and become exercisable, and the Executive or his legal representative shall have 360 days from the Date of Termination to exercise all such stock options, subject to the provisions of Section 8(c). All other stock-based grants and awards held by Executive shall vest or be canceled upon the Date of Termination in accordance with their terms. (c) Termination By Employers for Cause. If Executive's employment is terminated by the Employers for Cause as provided in Section 6(c), then the Employers shall, through the Date of Termination, pay Executive his accrued and unpaid salary at the rate in effect at the time Notice of Termination is given. Thereafter, the Employers shall have no further obligations to Executive except as otherwise expressly provided under this Agreement, provided any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Employers in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, all stock options held by Executive as of the Date of Termination shall immediately terminate and be of no further force and effect, and all other stock-based grants and awards shall be canceled or terminated in accordance with their terms. (d) Termination by Executive for Good Reason; Termination by Employers Without Cause. In the event of termination by the Employers without cause or by the Executive for Good Reason, the Executive shall be entitled to the following benefits, subject to signing by Executive of a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 7(d)) in a form and manner satisfactory to the Employers: 7 (i) The Employers shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment an amount equal to three times the sum of: (A) Executive's current base salary; plus (B) the greater of (1) the Executive's immediate prior fiscal year's bonus or (2) the average of his bonus for the immediate past three fiscal years; plus (C) twenty percent (20%) of the amount that (1) the sum of the Executive's current base salary plus his immediate prior fiscal year's bonus exceeds (2) the current year's annual compensation limit under Section 401(a)(17) of the Internal Revenue Code of 1986, as amended (the "Code"). Notwithstanding the foregoing, in the event Executive terminates his employment for Good Reason as provided in Section 6(e), he shall be entitled to the Severance Amount only if he provides the Notice of Termination provided for in Section 6(f) within 180 days after the occurrence of the latest event or events which constitute such Good Reason as specified in Section 6(e); (ii) Upon the Date of Termination, each unvested stock option and any other stock-based grants and awards held by Executive shall immediately vest and become exercisable by the Executive. Subject to the provisions of Section 8(c), each such stock option must be exercised by Executive within 180 days after such stock option first becomes exercisable as described herein; (iii) In addition to any other benefits to which Executive may be entitled in accordance with the Employers' then existing severance policies, for a period of three years commencing on the Date of Termination, the Employers shall pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iv) For the three year period subsequent to the Date of Termination, the Executive shall continue to receive all benefits described in Section 4(b) above existing on the Date of Termination. For purposes of application of such benefits the Executive shall be treated as if he had remained in the employ of the Employers, with an annual salary at the rate in effect on the date of termination (increased annually by a percentage amount equal to the percentage increase during the immediately preceding twelve months in the Consumer Price Index (All Items) for all Urban Consumers for the Boston, Massachusetts area, as published by the Bureau of Labor Statistics, or if such Index is not available, the U.S. Government Index which is the most similar thereto), and service credits will continue to accrue during such period as if the Executive had remained in the employ of the Employers. If benefits or service credits under any benefit plan shall not be payable or provided under any such plan to the Executive, or to the Executive's dependents, beneficiaries or estate, because the Executive is no longer deemed to be an employee of the Employers, the 8 Employers shall pay or provide for payment of such benefits and service credits for such benefits to the Executive, or to the Executive's dependents, beneficiaries or estate. (e) Termination by Executive Other Than For Good Reason. If Executive's employment is terminated by Executive other than for Good Reason as provided in Section 6(e), then the Employers shall, through the Date of Termination, pay Executive his accrued and unpaid salary at the rate in effect at the time Notice of Termination is given. Thereafter, the Employers shall have no further obligations to Executive except as otherwise expressly provided under this Agreement, provided any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Employers in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, subject to the provisions of Section 8(c), all vested but unexercised stock options held by Executive as of the Date of Termination must be exercised by Executive within three months following the Date of Termination or by the end of the option term, if earlier. All other stock-based grants and awards held by Executive shall vest or be canceled upon the Date of Termination in accordance with their terms. (f) Fees and Expenses. The Employers shall pay to the Executive all reasonable legal, accounting and arbitration fees and expenses incurred by Executive in successfully obtaining or enforcing any right or benefit provided in this Agreement. (g) Additional Benefits. (i) Gross-Up Payment. If it shall be determined that any payment or distribution of any type to or in respect of Executive, by the Employers, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (ii) Determination by Accountant. All computations and determinations relevant to this Section 7(g) shall be made by a national accounting firm selected by the Employers from among the four largest accounting firms in the United States (the "Accounting Firm"), and reasonably acceptable to Executive, which firm may be the Employers' accountants. All fees and expenses of the Accounting Firm shall be borne solely by the Employers. Such determinations shall include whether any of the Total Payments are "parachute payments" (within the meaning of Section 280G of the Code). In making the initial determination hereunder as to whether a Gross-Up Payment is required, the only basis for a determination that no Gross-Up Payment is required shall be if, but only if, the Accounting Firm (A) concludes 9 that (i) there has not occurred a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company (as such terms are defined in Section 280G of the Code) or (ii) no portion of the Total Payments constitutes "parachute payments" (within the meaning of said Section 280G), in either case on the basis of "substantial authority" (within the meaning of Treas. Reg. 1.6661-3), and (B) provides an opinion to that effect to both the Employers and Executive, including the reasons therefor and an opinion that Executive has substantial authority not to report any Excise Tax on his federal income tax return. If the Accounting Firm determines that a Gross-Up Payment is required, the Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter both to the Employers and Executive by such time as is requested by the Employers or Executive (if Executive reasonably believes that any of the Total Payments may be subject to the Excise Tax). (iii) If a Gross-Up Payment is determined to be payable, it shall be paid to Executive within 20 days after the Determination is delivered to the Employers by the Accounting Firm. Any determination by the Accounting Firm shall be binding upon the Employers and Executive, absent manifest error. Notwithstanding the foregoing, a Gross-up Payment shall be made as soon as practicable following a determination by the Internal Revenue Service that any portion of the Total Payments is subject to the Excise Tax. (iv) As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Employers should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Employers which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by Executive as a result of such Underpayment) shall be promptly paid by the Employers to or for the benefit of Executive. (v) In the case of any Overpayment, Executive shall, at the direction and expense of the Employers, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Employers, and otherwise reasonably cooperate with the Employers to correct such Overpayment, provided, however, that (A) Executive shall not in any event be obligated to return to the Employers an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (B) this provision and all other provisions in this Agreement shall be interpreted in a manner consistent with the intent of this Section 7(g), which is to make Executive whole, on an after-tax basis, from the application of the Excise Taxes, it being acknowledged and understood that the correction of an Overpayment may result in Executive repaying to the Employers an amount which is less than the Overpayment. 10 (vi) Executive shall notify the Employers in writing of any claim by the Internal Revenue Service relating to the possible application of the Excise Tax under Section 4999 of the Code to any of the payments and amounts referred to herein and shall afford the Employers, at its expense, the opportunity to control the defense of such claims. (vii) Executive shall cooperate with any reasonable requests by the Employers in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax and shall be reimbursed by the Employers, on an after-tax basis, for all costs, expenses, interest and penalties incurred by Executive in connection with any such contest or dispute. 8. Noncompetition and Confidential Information. (a) Noncompetition. During the term of the Executive's employment with the Employers, and, if Executive's employment with the Employers terminates for any reason at least 90 days prior to a Change in Control, then during the period after such termination of employment equal to the longer of (x) one year following the Date of Termination, and (y) three years following the Date of Termination if the Executive receives payments or benefits pursuant to Sections 7(b) or 7(d) hereof, 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 in Section 10), become an employee of or a consultant to, become a Director of or acquire any ownership interest in, or carry on, operate, manage, control, or become involved in any manner with any bank (or any financial institution that engages in consumer banking) that maintains or operates an office or branch in any city or town where the Employers maintain or operate an office or branch as of the Date of Termination, nor will the Executive attempt to hire any employee of either of the Employers, assist in such hiring by any other Person, encourage any such employee to terminate his or her relationship with either of the Employers, or solicit or encourage any customer of either of the Employers to terminate its relationship with either of the Employers or to conduct with any other Person any business or activity which such customer conducts or could conduct with either of the Employers; provided, however, that the foregoing shall not prohibit the Executive from owning up to two percent (2%) of the outstanding stock of a publicly held company engaged in the banking or financial services industry. (b) Confidential Information. The Executive will not disclose to any other Person (except as required by applicable law or in connection with the performance of his duties and responsibilities hereunder), or use for his own benefit or gain, any confidential information of either of the Employers obtained by him incident to his employment with the Employers. The term "confidential information" includes, without limitation, financial information, business plans, prospects and opportunities (such as lending relationships, financial product developments, or possible acquisitions or dispositions of businesses or facilities) which have been discussed or considered by the management of the Employers but does not include any information which has become part of the public domain by means other than the Executive's non-observance of his obligations hereunder. (c) Relief. The Executive agrees that the Employers shall be entitled to injunctive relief for any breach by him of the covenants 11 contained in Sections 8(a) or 8(b). Notwithstanding anything herein or in any option plan or agreement to the contrary, with respect to any stock option granted to the Executive by the Employers on or after the date hereof (the "New Options"), upon any breach by Executive of the covenants contained in Section 8(a) then (i) all New Options shall immediately terminate and be of no further force and effect, and (ii) with respect to any New Options that were exercised during the one year period immediately prior to such breach (A) to the extent Executive owns any shares that he received as a result of such option exercise, then Executive shall sell to the Employers (and the Employers shall purchase from Executive) such shares for an aggregate purchase price equal to the lesser of (x) the aggregate exercise price paid by Executive for such shares, or (y) the fair market value of such shares, and (B) to the extent Executive no longer owns any shares that he received as a result of such option exercise, the Executive shall pay to the Employers an amount of cash equal to the sum of (x) any gain realized upon the exercise of such option, and (y) any gain realized upon the sale or transfer of such shares. (d) Interpretation. In the event that any provision of this Section 8 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a period of time, too large a geographic area, or too great a range of activities, it shall be interpreted to extend only over the maximum period of time, geographic area, or range of activities as to which it may be enforceable. For purposes of this Section 8, the term "Employers" shall mean the Company, the Bank and any of their respective subsidiaries and affiliates. 9. Conflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the performance of his obligations hereunder will not breach or be in conflict with any other agreement to which he is a party or is bound, and that he is not now subject to any covenants against competition or similar covenants which would affect the performance of his obligations hereunder. 10. Definition of "Person." For purposes of this Agreement: the term "Person" shall mean an individual, a corporation, an association, a partnership, an estate, a trust and any other entity or organization. 11. Withholding. All payments made by the Employers under this Agreement shall be net of any tax or other amounts required to be withheld by the Employers under applicable law. 12. 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 Employers, 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 12. 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 12 enforcement of any or all of the Executive's rights under this Agreement, the Employers shall pay (or the Executive shall be entitled to recover from the Employers, 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. 13. Assignment; Successors and Assigns, etc. Neither the Employers 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; provided, however, that the Employers may assign their rights under this Agreement without the consent of the Executive in the event either of the Employers shall hereafter effect a reorganization, consolidate with or merge into any other Person, or transfer all or substantially all of its properties or assets to any other Person. This Agreement shall inure to the benefit of and be binding upon the Employers 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 Employers of all payments due him under this Agreement, the Employers shall continue such payments to the Executive's beneficiary designated in writing to the Employers prior to his death (or to his estate, if he fails to make such designation). 14. 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. The provisions of Sections 7(f), 7(g), 8 and 12 shall survive the termination of this Agreement. 15. Allocation of Obligations Between Employers. The obligations of the Employers under this Agreement are intended to be the joint and several obligations of the Bank and the Company and the Employers shall, as between themselves, allocate these obligations in a manner agreed upon by them. 16. 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. 17. 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 Employers or, in the case of the Employers, at either of their main offices, attention of the Board of Directors. 13 18. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Executive and by duly authorized representatives of the Employers. 19. 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. 20. Prior Agreements. This Agreement shall supercede and replace in all respects the Employment Agreement and the Severance Agreement. The SERP, the Deferred Compensation Program and all other agreements that may exist between the Employers and the Executive that provide for the payment of any compensation or benefits to Executive shall survive. 14 IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Bank and the Executive, as of the date first above written. MASSBANK CORP. By: /s/ Reginald E. Cormier ---------------------------------- Title: Sr. V.P., Treasurer & CFO -------------------------------- MASSBANK By: /s/ Reginald E. Cormier ---------------------------------- Title: Sr.V.P., Treasurer & CFO /s/ Gerard H. Brandi -------------------------------------- Gerard H. Brandi 15 EX-10.3.17 4 dex10317.txt AMENDED EMPLOYMENT AGREEMENT, DAVID F. CARROLL EXHIBIT 10.3.17 AMENDED AND RESTATED EMPLOYMENT AGREEMENT This Amended and Restated Employment Agreement ("Agreement") is made as of the 28th day of October, 2002, by and between MASSBANK, a Massachusetts savings bank with its main office in Reading, Massachusetts (the "Bank"), and David F. Carroll (the "Executive"). WITNESSETH WHEREAS, the Bank and the Executive entered into an Employment Agreement, dated as of February 1, 1993 (the "Employment Agreement"); WHEREAS, the Bank and the Executive entered into an Executive Severance Agreement, dated as of December 23, 1993 (the "Severance Agreement"); WHEREAS, the parties hereto desire to provide for the Executive's continued employment by the Bank and to delineate the Executive's and the Bank's rights and obligations arising in connection therewith, including in the event of a Change in Control (as defined herein) subject to the amended terms and conditions set forth herein; and WHEREAS, the parties hereto intend that this Agreement shall be an amendment and restatement of the Employment Agreement and the Severance Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Bank and the Executive agree as follows: 1. Employment. The Bank agrees to employ the Executive and the Executive agrees to serve in the employ of the Bank on the terms and conditions hereinafter set forth. 2. Capacity. The Executive shall serve as an officer of the Bank in such capacity as the Board of Directors may from time to time determine. In such capacity the Executive shall, subject to the By-laws of the Bank and to the direction of its President, Board of Directors and other appropriate officers, have responsibility for such functions and duties as he may be directed from time to time by the President or other appropriate officer of the Bank. 3. Term. Subject to the applicable provisions herein, the term of the Executive's employment hereunder shall be for two years from the date hereof; provided, however, that the term shall be extended automatically by an additional one day commencing on the first day following the date hereof and on each subsequent day thereafter, unless either the Executive or the Bank gives written notice to the other of such party's election not to extend the term of this Agreement. The last day of the term of the Executive's employment hereunder, as so extended from time to time, is herein sometimes referred to as the "Expiration Date." 4. Compensation and Benefits. The regular compensation and benefits payable to the Executive under this Agreement shall be as follows: (a) Salary. For all services rendered by the Executive under this Agreement, the Bank shall pay the Executive a salary equal to his present salary at the Bank, subject to increase from time to time in the sole discretion of the Board of Directors upon the recommendation of the Compensation Committee or the Chief Executive Officer of the Bank. The Executive's salary shall be payable in periodic installments in accordance with the Bank's usual practices for its executives. (b) Regular Benefits. The Executive shall also be entitled to participate in those medical insurance plans, life insurance plans, disability income plans, retirement plans, bonus incentive plans and other benefit plans from time to time in effect generally for executives of the Bank. Such participation shall be subject to (i) the terms of the applicable plan documents, (ii) generally applicable policies of the Bank and (iii) the discretion of the Board of Directors of the Bank or any administrative or other committee provided for in or contemplated by such plan. (c) Business Expenses. The Bank shall reimburse the Executive for all reasonable travel and other business expenses incurred by him in the performance of his duties and responsibilities, subject to the Bank's usual practices and policies in connection therewith and to such reasonable requirements with respect to substantiation and documentation as may from time to time be specified by the Bank. (d) Vacation. The Executive shall be entitled to vacation in accordance with the Bank's usual practices for its executives. 5. Extent of Service. During his employment hereunder, the Executive shall devote his full business time, best efforts and business judgment, skill and knowledge to the advancement of the interests of the Bank and to the discharge of his duties and responsibilities hereunder. The Executive shall comply at all times with all Bank policies. He shall not engage in any other business activity, except as may be approved by the President of the Bank or its Board of Directors; provided, however, that nothing herein shall be construed as preventing the Executive from: (a) Investing his assets in a manner not prohibited by Section 9 hereof, and in such form or manner as shall not require any material services on his part in the operations or affairs of the companies or other entities in which such investments are made; (b) Serving on the board of directors of any company, subject to the approval of the Chief Executive Officer of the Bank and the prohibitions set forth in Section 9 and provided that he shall not be required to render any material services with respect to the operations or affairs of any such company; or (c) Engaging in religious, charitable or other community or non-profit activities which do not impair his ability to fulfill his duties and responsibilities under this Agreement. 2 6. Termination. Notwithstanding the provisions of Section 3 hereof, the Executive's employment hereunder may be terminated without any breach of this Agreement under the following circumstances: (a) Death. In the event of the Executive's death during the Executive's employment hereunder, the Executive's employment shall terminate on the date of his death. (b) Disability. In the event of the Executive's "disability" during the Executive's employment hereunder, the Executive's employment may be terminated by the Bank. For purposes of this Agreement, "disability" shall mean the Executive's incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his duties with the Bank for a period of six consecutive months if the Bank shall have given the Executive a notice of termination and, within 30 days after such notice is given, the Executive shall not have returned to the full-time performance of his duties. (c) Termination by the Bank for Cause. The Executive's employment hereunder may be terminated for "cause" without further liability on the part of the Bank effective immediately upon a determination of the President or the Board of Directors that such "cause" exists. For purposes hereof, any one or more of the following shall constitute "cause" for such termination: (i) Dishonesty of the Executive with respect to the Bank or any affiliate thereof; (ii) Commission by the Executive of a crime punishable as a felony; (iii) Failure by the Executive to perform in a satisfactory manner a substantial portion of his duties and responsibilities hereunder; or (iv) Breach by the Executive of any term of this Agreement, including without limitation Section 9 hereof. (d) Termination by the Bank Without Cause. The Executive's employment with the Bank may be terminated without cause at any time by the Bank. (e) Termination by the Executive. The Executive's employment with the Bank may be terminated by Executive at any time, including for Good Reason following a Change in Control. For purposes of this Agreement, Good Reason shall mean the occurrence of any of the following events: (i) A substantial adverse change, not consented to by the Executive, in the nature or scope of the Executive's title, responsibilities, authorities, powers, reporting relationship, functions or duties from the title, responsibilities, authorities, powers, reporting relationship, functions or duties exercised by the Executive immediately prior to the Change in Control; or 3 (ii) 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; or (iii) The relocation of the Bank's offices at which the Executive is principally employed immediately prior to the date of a Change in Control to a location more than 25 miles from such offices, or the requirement by the Bank for the Executive to be based anywhere other than the Bank's offices at such location, except for required travel on the Bank's business to an extent substantially consistent with the Executive's business travel obligations immediately prior to the Change in Control; or (iv) The failure by the Bank to pay to the Executive any portion of his compensation or to pay to the Executive any portion of an installment of deferred compensation under any deferred compensation program of the Bank within 15 days of the date such compensation is due without prior written consent of the Executive; or (v) Breach by the Bank of any provision of this Agreement or any other agreement that may exist from time to time between the Executive and the Bank that provides for the payment of any compensation or benefits to Executive; or (vi) The failure by the Bank to obtain and deliver to the Executive an effective agreement from any successor to assume and agree to perform this Agreement. (f) Date of Termination. "Date of Termination" shall mean: (A) if Executive's employment is terminated by his death, the date of his death; (B) if Executive's employment is terminated by reason of his disability, 30 days after the date on which a notice of termination is given, (C) if Executive's employment is terminated by the Bank without cause, 60 days after the date on which a notice of termination is given; and (D) if Executive's employment is terminated for any other reason, the date on which a notice of termination is given. 7. Compensation Upon Termination. (a) Termination Due to Death. If Executive's employment terminates by reason of his death, the Bank shall, within 90 days of death, pay in a lump sum cash payment to such person as Executive shall designate in a notice filed with the Bank or, if no such person is designated, to Executive's estate, Executive's accrued and unpaid salary to the date of his death, plus his accrued and unpaid incentive compensation, if any. Upon the death of Executive, all unvested stock options granted to Executive shall immediately vest and become fully exercisable, and Executive's estate or other legal representatives shall have one year from the Date of Termination, to exercise all stock options granted to Executive. All other stock-based grants and awards held by Executive shall vest upon the death of Executive. For a period of one year following the Date of Termination, the Bank shall pay such health insurance premiums as may be necessary to allow Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received prior to the Date of Termination. In addition to the foregoing, any payments to which Executive's spouse, beneficiaries, or estate may be entitled under any employee benefit plan 4 shall also be paid in accordance with the terms of such plan or arrangement. Such payments, in the aggregate, shall fully discharge the Bank's obligations hereunder. (b) Disability. In the event of termination pursuant to Section 6(b), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus his accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 7(b)) in a form and manner satisfactory to the Bank: (i) The Executive shall continue to receive his full salary under Section 4(a) of this Agreement until the earlier of his death, his becoming eligible for disability income under the Bank's disability income plan or two years following the Date of Termination; (ii) For a period of two years following the Date of Termination, the Bank shall pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iii) All unvested stock options granted to Executive shall immediately vest and become exercisable, and the Executive or his legal representative shall have one year from the Date of Termination to exercise all stock options, subject to the provisions of Section 9(c). All other stock-based grants and awards held by Executive shall immediately vest upon the Date of Termination. (c) Termination by the Bank for Cause. In the event of termination pursuant to Section 6(c), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination. Thereafter, the Bank shall have no further obligation to Executive except as otherwise expressly provided under this Agreement, provided that any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Bank in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, in the event of termination pursuant to Section 6(c)(i) or (ii), all stock options held by Executive as of the Date of Termination shall immediately terminate and be of no further force and effect, and all other stock-based grants and awards shall be cancelled or terminated in accordance with their terms. (d) Termination by the Bank Without Cause. In the event of termination pursuant to Section 6(d), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus his accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the 5 right to receive the payments or benefits set forth in this Section 7(d)) in a form and manner satisfactory to the Bank: (i) The Bank shall within 30 days following the Date of Termination pay Executive in a lump sum cash payment an amount equal to two times the sum of (A) Executive's current base salary and (B) the greater of (1) his immediate prior fiscal year's bonus or (2) the average of the Executive's bonus for the immediate past three fiscal years; (ii) Upon the Date of Termination, each unvested stock option and any other stock-based grants and awards held by Executive shall immediately vest and become exercisable by the Executive. Subject to the provisions of Section 9(c), each such stock option may be exercised by Executive within 180 days after the Date of Termination; (iii) In addition to any other benefits to which Executive may be entitled in accordance with the Bank's then existing severance policies, the Bank shall, for a period of two years commencing on the Date of Termination, pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to continue to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iv) Except as expressly set forth in this Section 7(d) or required by applicable law, the Executive shall not be entitled to any other payments or benefits from the Bank following his termination without cause. Notwithstanding the foregoing, the terms of this Section 7(d) shall not apply to a termination with respect to which Executive is entitled to receive benefits pursuant to Section 8(c). (e) Termination by the Executive. In the event of termination pursuant to Section 6(e), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination. Thereafter, the Bank shall have no further obligation to Executive except as otherwise expressly provided under this Agreement, provided that any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Bank in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, subject to the provisions of Section 9(c), all vested but unexercised stock options held by Executive as of the Date of Termination must be exercised by Executive within three months following the Date of Termination or by the end of the option term, if earlier. All other stock-based grants and awards held by Executive shall vest or be canceled upon the Date of Termination in accordance with their terms. Notwithstanding the foregoing, the terms of this Section 7(e) shall not apply to a termination with respect to which Executive is entitled to receive benefits pursuant to Section 8(c). 6 8. Certain Change in Control Payments. (a) Purpose. The provisions of this Section 8 shall apply if the Date of Termination is within 24 months after the first event constituting a Change in Control. The provisions of this Section 8 shall terminate and be of no further force or effect beginning on the second anniversary of a Change in Control. (b) A "Change in Control" shall be deemed to have occurred in any one of the following events: (i) Any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Act) (other than MASSBANK Corp. ("the Company"), any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities; (ii) Persons who, as of October 1, 2002, constituted the Company's Board of Directors (the "Incumbent Board") 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 of Directors of the Company, provided that any person becoming a director of the Company subsequent to October 1, 2002 whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Agreement, be considered a member of the Incumbent Board; (iii) The stockholders of the Company approve a merger or consolidation of the Company with any other corporation or other entity, 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 60% 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 than 50% of the combined voting power of the Company's then outstanding securities; or (iv) The stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. (c) Severance Payment. In the event within 24 months after a Change in Control the Executive's employment is terminated by the Bank without cause (pursuant to Section 6(d)) or by the Executive for Good Reason (pursuant to Section 6(e)), then in lieu of the benefits provided in Sections 7 7(d) and 7(e) above the Executive shall be entitled to the following benefits, subject to signing by Executive of a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 8) in a form and manner satisfactory to the Bank: (i) The Bank shall pay to the Executive an amount equal to three times the "base amount" (as such term is defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code")) applicable to the Executive, payable in one lump-sum cash payment no later than 30 days following the Date of Termination (as such term is defined in Section 6(f)); and (ii) All unvested stock options and other stock based awards granted to Executive shall immediately vest and become exercisable by the Executive. Each such stock option, may be exercised by Executive within 180 days after the Date of Termination (iii) In addition to any other benefits to which the Executive may be entitled in accordance with the Bank's then existing severance policies, the Bank shall, for a period of three years commencing on the Date of Terminations, pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to continue to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination. (d) Additional Limitation. (i) Anything in this Agreement to the contrary notwithstanding, in the event that any compensation, payment or distribution by the Bank to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Severance Payments"), would be subject to the excise tax imposed by Section 4999 of the Code the following provisions shall apply: (A) If the Severance Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Payments which are in excess of the Threshold Amount (as defined below), are greater than or equal to the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement. (B) If the Threshold Amount is less than (x) the Severance Payments, but greater than (y) the Severance Payments reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes on the amount of the Severance Payments which are in excess of the Threshold Amount, then the benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the maximum Severance Payments shall not exceed the Threshold Amount. To the extent that there is more than one method of reducing the payments to bring them within the Threshold Amount, Executive shall determine which method shall be followed; provided that if Executive fails to make such 8 determination within 45 days after the Bank has sent Executive written notice of the need for such reduction, the Bank may determine the amount of such reduction in its sole discretion. For the purposes of this Paragraph 8(d)(iv), "Threshold Amount" shall mean three times Executive's "base amount" within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and "Excise Tax" shall mean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. (ii) The determination as to which of the alternative provisions of Paragraph 8(d)(iv)(A) shall apply to Executive shall be made by KPMG LLP or any other nationally recognized accounting firm selected by the Bank (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Bank and Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Bank or Executive. For purposes of determining which of the alternative provisions of Paragraph 8(d)(iv)(A) shall apply, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Bank and Executive. (e) Fees and Expenses. The Bank shall pay to the Executive all reasonable legal and arbitration fees and expenses incurred by Executive in successfully obtaining or enforcing any right or benefit provided in Section 8 of this Agreement. 9. Non-competition and Confidential Information. (a) Non-competition. During the term of Executive's employment with the Bank, and, if Executive's employment with the Bank terminates for any reason at least 90 days prior to a Change in Control, then during the period after such termination of employment equal to the longer of (x) one year following the Date of Termination, and (y) two years following the Date of Termination if the Executive receives payments or benefits pursuant to Sections 7(b), 7(d) or 8(c) hereof, the Executive will not, directly or indirectly, whether as owner, partner, shareholder, consultant, agent, employee, co-venturer or otherwise, or through any person, association or entity, become an employee of or a consultant to, become a Director of or acquire any ownership interest in, or carry on, operate, manage, control, or become involved in any manner with any bank (or any financial institution that engages in consumer banking) that maintains or operates an office or branch in any city or town where the Bank maintains or operates an office or branch as of the Date of Termination, nor will Executive attempt to hire any employee of the Bank, assist (but not including giving references) in such hiring by any other person, association or entity, encourage any such employee to terminate his or her relationship with the Bank, or solicit or encourage any customer of the Bank to terminate or reduce its relationship with the Bank, or to conduct with any other person, association or entity any 9 business or activity which such customer conducts or could conduct with the Bank, whether or not the Bank's relationship with such customer was originally established in whole or in part by the Executive; provided, however, that the foregoing shall not prohibit the Executive from owning up to two percent (2%) of the outstanding stock of a publicly traded company engaged in the banking or financial services industry. (b) Confidential Information. The Executive will not at any time disclose to any other person, association or entity (except as required by applicable law or in connection with the performance of his duties and responsibilities hereunder), or use for his own benefit or gain, any confidential information of the Bank obtained by him incident to his employment with the Bank. The term "confidential information" includes, without limitation, financial information, business plans, business practices, customer lists, prospects and opportunities (such as lending relationships, trust relationships, financial product developments, or possible acquisitions or dispositions of businesses or facilities) which have been implemented, discussed or considered by the Bank but does not include any information which has become part of the public domain by means other than the Executive's non-observance of his obligations hereunder. (c) Relief. The Executive agrees that the Bank shall be entitled to injunctive relief for any breach by him of the covenants contained in Section 9(a) or 9(b). Notwithstanding anything herein or in any option plan or agreement to the contrary, with respect to any stock option granted to the Executive by the Bank on or after the date hereof (the "New Options"), upon any breach by Executive of the covenants contained in Section 9(a) then (i) all New Options shall immediately terminate and be of no further force and effect, and (ii) with respect to any New Options that were exercised during the one year period immediately prior to such breach (A) to the extent Executive owns any shares that he received as a result of such option exercise, then Executive shall sell to the Bank (and the Bank shall purchase from Executive) such shares for an aggregate purchase price equal to the lesser of (x) the aggregate exercise price paid by Executive for such shares, or (y) the fair market value of such shares, and (B) to the extent Executive no longer owns any shares that he received as a result of such option exercise, the Executive shall pay to the Bank an amount of cash equal to the sum of (x) any gain realized upon the exercise of such option, and (y) any gain realized upon the sale or transfer of such shares. (d) Interpretation. In the event that any provision of this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a period of time, too large a geographic area, or too great a range of activities, it shall be interpreted to extend only over the maximum period of time, geographic area, or range of activities as to which it may be enforceable. As used in this Section 9, the term "Bank" means the Bank and its affiliates. 10. Conflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the performance of his obligations hereunder will not breach or be in conflict with any other agreement to which he is a party or is bound, and that he is not now subject to any covenants against competition or similar covenants which would affect the performance of his obligations hereunder. 10 11. 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. 12. 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 rules of 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. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. 13. Assignment; Successors and Assigns, etc. 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; provided, however, that the Bank may assign its rights under this Agreement without the consent of the Executive in the event the Bank shall hereafter effect a reorganization, consolidate with or merge into any other party, or transfer all or substantially all of its properties or assets to any other party. 14. 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. 15. 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. The provisions of Sections 8(d), 8(e), 9 and 12 shall survive the termination of this Agreement. 16. 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 President. 17. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Executive and by duly authorized representatives of the Bank. 18. 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. 19. Prior Agreements. This Agreement shall supercede and replace in all respects the Employment Agreement and the Severance Agreement. All other 11 agreements that may exist between the Bank and Executive that provide for the payment of any compensation or benefits to Executive shall survive. 12 IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Bank and the Executive, as of the date first above written. MASSBANK By: /s/ Gerard H. Brandi --------------------- Gerard H. Brandi Title: President & CEO /s/ David F. Carroll -------------------- David F. Carroll 13 EX-10.3.18 5 dex10318.txt AMENDED EMPLOYMENT AGREEMENT, REGINALD E. CORMIER EXHIBIT 10.3.18 AMENDED AND RESTATED EMPLOYMENT AGREEMENT This Amended and Restated Employment Agreement ("Agreement") is made as of the 28th day of October, 2002, by and between MASSBANK, a Massachusetts savings bank with its main office in Reading, Massachusetts (the "Bank"), MASSBANK Corp., a Delaware corporation (the "Company"), and Reginald E. Cormier (the "Executive"). The Company and the Bank shall hereinafter be collectively referred to as the "Employers". WITNESSETH WHEREAS, the Employers and the Executive entered into an Employment Agreement, dated as of February 1, 1993 (the "Employment Agreement"); WHEREAS, the Employers and the Executive entered into an Executive Severance Agreement, dated as of December 23, 1993 (the "Severance Agreement"); WHEREAS, the parties hereto desire to provide for the Executive's continued employment by the Employers and to delineate the Executive's and the Employers' rights and obligations arising in connection therewith, including in the event of a Change in Control (as defined herein) subject to the amended terms and conditions set forth herein; and WHEREAS, the parties hereto intend that this Agreement shall be an amendment and restatement of the Employment Agreement and the Severance Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Employers and the Executive agree as follows: 1. Employment. The Employers agree to employ the Executive and the Executive agrees to serve in the employ of the Employers on the terms and conditions hereinafter set forth. 2. Capacity. The Executive shall serve as an officer of the Bank and of the Company in such capacity(ies) as their respective Boards of Directors may from time to time determine. In such capacity(ies) the Executive shall, subject to the By-laws of the Bank and the Company, as the case may be, and to the direction of the President, Board of Directors and other appropriate officers, have responsibility for such functions and duties as he may be directed from time to time by the President or other appropriate officer of the Employers. 3. Term. Subject to the applicable provisions herein, the term of the Executive's employment hereunder shall be for two years from the date hereof; provided, however, that the term shall be extended automatically by an additional one day commencing on the first day following the date hereof and on each subsequent day thereafter, unless either the Executive or the Employers give written notice to the other of such party's election not to extend the term of this Agreement. The last day of the term of the Executive's employment hereunder, as so extended from time to time, is herein sometimes referred to as the "Expiration Date." 4. Compensation and Benefits. The regular compensation and benefits payable to the Executive under this Agreement shall be as follows: (a) Salary. For all services rendered by the Executive under this Agreement, the Employers shall pay the Executive a salary equal to his present salary, subject to increase from time to time in the sole discretion of the Boards of Directors upon the recommendation of the Compensation Committee or the Chief Executive Officer. The Executive's salary shall be payable in periodic installments in accordance with the Employers' usual practices for its executives. (b) Regular Benefits. The Executive shall also be entitled to participate in those medical insurance plans, life insurance plans, disability income plans, retirement plans, bonus incentive plans and other benefit plans from time to time in effect generally for executives of the Employers. Such participation shall be subject to (i) the terms of the applicable plan documents, (ii) generally applicable policies of the Employers and (iii) the discretion of the Boards of Directors of the Employers or any administrative or other committee provided for in or contemplated by such plan. (c) Business Expenses. The Employers shall reimburse the Executive for all reasonable travel and other business expenses incurred by him in the performance of his duties and responsibilities, subject to the Employers' usual practices and policies in connection therewith and to such reasonable requirements with respect to substantiation and documentation as may from time to time be specified by the Employers. (d) Vacation. The Executive shall be entitled to vacation in accordance with the Employers' usual practices for its executives. 5. Extent of Service. During his employment hereunder, the Executive shall devote his full business time, best efforts and business judgment, skill and knowledge to the advancement of the interests of the Employers and to the discharge of his duties and responsibilities hereunder. The Executive shall comply at all times with all Bank and Company policies. He shall not engage in any other business activity, except as may be approved by the President of the Company or its Board of Directors; provided, however, that nothing herein shall be construed as preventing the Executive from: (a) Investing his assets in a manner not prohibited by Section 9 hereof, and in such form or manner as shall not require any material services on his part in the operations or affairs of the companies or other entities in which such investments are made; (b) Serving on the board of directors of any company, subject to the approval of the Chief Executive Officer of the Company and the prohibitions set forth in Section 9 and provided that he shall not be required to render any material services with respect to the operations or affairs of any such company; or 2 (c) Engaging in religious, charitable or other community or non-profit activities which do not impair his ability to fulfill his duties and responsibilities under this Agreement. 6. Termination. Notwithstanding the provisions of Section 3 hereof, the Executive's employment hereunder may be terminated without any breach of this Agreement under the following circumstances: (a) Death. In the event of the Executive's death during the Executive's employment hereunder, the Executive's employment shall terminate on the date of his death. (b) Disability. In the event of the Executive's "disability" during the Executive's employment hereunder, the Executive's employment may be terminated by the Employers. For purposes of this Agreement, "disability" shall mean the Executive's incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his duties with the Employers for a period of six consecutive months if the Employers shall have given the Executive a notice of termination and, within 30 days after such notice is given, the Executive shall not have returned to the full-time performance of his duties. (c) Termination by the Employers for Cause. The Executive's employment hereunder may be terminated for "cause" without further liability on the part of the Employers effective immediately upon a determination of the President or the Board of Directors that such "cause" exists. For purposes hereof, any one or more of the following shall constitute "cause" for such termination: (i) Dishonesty of the Executive with respect to the Employers or any affiliate thereof; (ii) Commission by the Executive of a crime punishable as a felony; (iii) Failure by the Executive to perform in a satisfactory manner a substantial portion of his duties and responsibilities hereunder; or (iv) Breach by the Executive of any term of this Agreement, including without limitation Section 9 hereof. (d) Termination by the Employers Without Cause. The Executive's employment with the Employers may be terminated without cause at any time by the Employers. (e) Termination by the Executive. The Executive's employment with the Employers may be terminated by Executive at any time, including for Good Reason following a Change in Control. For purposes of this Agreement, Good Reason shall mean the occurrence of any of the following events: (i) A substantial adverse change, not consented to by the Executive, in the nature or scope of the Executive's title, responsibilities, authorities, powers, reporting relationship, functions or duties from the title, responsibilities, authorities, 3 powers, reporting relationship, functions or duties exercised by the Executive immediately prior to the Change in Control; or (ii) 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; or (iii) The relocation of the Employers' offices at which the Executive is principally employed immediately prior to the date of a Change in Control to a location more than 25 miles from such offices, or the requirement by the Employers for the Executive to be based anywhere other than the Employers' offices at such location, except for required travel on the Employers' business to an extent substantially consistent with the Executive's business travel obligations immediately prior to the Change in Control; or (iv) The failure by the Employers to pay to the Executive any portion of his compensation or to pay to the Executive any portion of an installment of deferred compensation under any deferred compensation program of the Employers within 15 days of the date such compensation is due without prior written consent of the Executive; or (v) Breach by the Employers of any provision of this Agreement or any other agreement that may exist from time to time between the Executive and the Employers that provides for the payment of any compensation or benefits to Executive; or (vi) The failure by the Employers to obtain and deliver to the Executive an effective agreement from any successor to assume and agree to perform this Agreement. (f) Date of Termination. "Date of Termination" shall mean: (A) if Executive's employment is terminated by his death, the date of his death; (B) if Executive's employment is terminated by reason of his disability, 30 days after the date on which a notice of termination is given, (C) if Executive's employment is terminated by the Employers without cause, 60 days after the date on which a notice of termination is given; and (D) if Executive's employment is terminated for any other reason, the date on which a notice of termination is given. 7. Compensation Upon Termination. (a) Termination Due to Death. If Executive's employment terminates by reason of his death, the Employers shall, within 90 days of death, pay in a lump sum cash payment to such person as Executive shall designate in a notice filed with the Employers or, if no such person is designated, to Executive's estate, Executive's accrued and unpaid salary to the date of his death, plus his accrued and unpaid incentive compensation, if any. Upon the death of Executive, all unvested stock options granted to Executive shall immediately vest and become fully exercisable, and Executive's estate or other legal representatives shall have one year from the Date of Termination, to exercise all stock options granted to Executive. All other stock-based grants and awards held by Executive shall vest upon the death of Executive. For a period of one year following the Date of Termination, the Employers shall pay such health insurance premiums as may be necessary to allow Executive's spouse and dependents to receive health 4 insurance coverage substantially similar to coverage they received prior to the Date of Termination. In addition to the foregoing, any payments to which Executive's spouse, beneficiaries, or estate may be entitled under any employee benefit plan shall also be paid in accordance with the terms of such plan or arrangement. Such payments, in the aggregate, shall fully discharge the Employers' obligations hereunder. (b) Disability. In the event of termination pursuant to Section 6(b), the Employers shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus his accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 7(b)) in a form and manner satisfactory to the Employers: (i) The Executive shall continue to receive his full salary under Section 4(a) of this Agreement until the earlier of his death, his becoming eligible for disability income under the Employers' disability income plan or three years following the Date of Termination; (ii) For a period of three years following the Date of Termination, the Employers shall pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iii) All unvested stock options granted to Executive shall immediately vest and become exercisable, and the Executive or his legal representative shall have one year from the Date of Termination to exercise all stock options, subject to the provisions of Section 9(c). All other stock-based grants and awards held by Executive shall immediately vest upon the Date of Termination. (c) Termination by the Employers for Cause. In the event of termination pursuant to Section 6(c), the Employers shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination. Thereafter, the Employers shall have no further obligation to Executive except as otherwise expressly provided under this Agreement, provided that any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Employers in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, all stock options held by Executive as of the Date of Termination shall immediately terminate and be of no further force and effect, and all other stock-based grants and awards shall be cancelled or terminated in accordance with their terms. (d) Termination by the Employers Without Cause. In the event of termination pursuant to Section 6(d), the Employers shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus his 5 accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 7(d)) in a form and manner satisfactory to the Employers: (i) The Employers shall within 30 days following the Date of Termination pay Executive in a lump sum cash payment an amount equal to three times the sum of (A) Executive's current base salary and (B) the greater of (1) his immediate prior fiscal year's bonus or (2) the average of the Executive's bonus for the immediate past three fiscal years; (ii) Upon the Date of Termination, each unvested stock option and any other stock-based grants and awards held by Executive shall immediately vest and become exercisable by the Executive. Subject to the provisions of Section 9(c), each such stock option may be exercised by Executive within 180 days after the Date of Termination; (iii) In addition to any other benefits to which Executive may be entitled in accordance with the Employers' then existing severance policies, the Employers shall, for a period of three years commencing on the Date of Termination, pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to continue to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iv) Except as expressly set forth in this Section 7(d) or required by applicable law, the Executive shall not be entitled to any other payments or benefits from the Employers following his termination without cause. Notwithstanding the foregoing, the terms of this Section 7(d) shall not apply to a termination with respect to which Executive is entitled to receive benefits pursuant to Section 8(c). (e) Termination by the Executive. In the event of termination pursuant to Section 6(e), the Employers shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination. Thereafter, the Employers shall have no further obligation to Executive except as otherwise expressly provided under this Agreement, provided that any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Employers in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, subject to the provisions of Section 9(c), all vested but unexercised stock options held by Executive as of the Date of Termination must be exercised by Executive within three months following the Date of Termination or by the end of the option term, if earlier. All other stock-based grants and awards held by Executive shall vest or be canceled upon the Date of Termination in accordance with their terms. Notwithstanding the foregoing, the terms of this Section 7(e) shall not apply to a termination with respect to which Executive is entitled to receive benefits pursuant to Section 8(c). 6 8. Certain Change in Control Payments. (a) Purpose. The provisions of this Section 8 shall apply if the Date of Termination is within 24 months after the first event constituting a Change in Control. The provisions of this Section 8 shall terminate and be of no further force or effect beginning on the second anniversary of a Change in Control. (b) A "Change in Control" shall be deemed to have occurred in any one of the following events: (i) Any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Act) (other than any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities; (ii) Persons who, as of October 1, 2002, constituted the Company's Board of Directors (the "Incumbent Board") 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 of Directors of the Company, provided that any person becoming a director of the Company subsequent to October 1, 2002 whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Agreement, be considered a member of the Incumbent Board; (iii) The stockholders of the Company approve a merger or consolidation of the Company with any other corporation or other entity, 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 60% 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 than 50% of the combined voting power of the Company's then outstanding securities; or (iv) The stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. (c) Severance Payment. In the event within 24 months after a Change in Control the Executive's employment is terminated by the Employers without cause (pursuant to Section 6(d)) or by the Executive for Good Reason (pursuant to Section 6(e)), then in lieu of the benefits provided in Sections 7(d) and 7(e) above the Executive shall be entitled to the following 7 benefits, subject to signing by Executive of a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 8) in a form and manner satisfactory to the Employers: (i) The Employers shall pay to the Executive an amount equal to three times the "base amount" (as such term is defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code")) applicable to the Executive, payable in one lump-sum cash payment no later than 30 days following the Date of Termination (as such term is defined in Section 6(f)); and (ii) All unvested stock options and other stock based awards granted to Executive shall immediately vest and become exercisable by the Executive. Each such stock option, may be exercised by Executive within 180 days after the Date of Termination (iii) In addition to any other benefits to which the Executive may be entitled in accordance with the Employers' then existing severance policies, the Employers shall, for a period of three years commencing on the Date of Terminations, pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to continue to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination. (d) Additional Limitation. (i) Anything in this Agreement to the contrary notwithstanding, in the event that any compensation, payment or distribution by the Employers to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Severance Payments"), would be subject to the excise tax imposed by Section 4999 of the Code the following provisions shall apply: (A) If the Severance Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Payments which are in excess of the Threshold Amount (as defined below), are greater than or equal to the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement. (B) If the Threshold Amount is less than (x) the Severance Payments, but greater than (y) the Severance Payments reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes on the amount of the Severance Payments which are in excess of the Threshold Amount, then the benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the maximum Severance Payments shall not exceed the Threshold Amount. To the extent that there is more than one method of reducing the payments to bring them within the Threshold Amount, Executive shall determine which method shall be followed; provided that if Executive fails to make such determination within 45 days after the Employers have sent 8 Executive written notice of the need for such reduction, the Employers may determine the amount of such reduction in its sole discretion. For the purposes of this Paragraph 8(d)(iv), "Threshold Amount" shall mean three times Executive's "base amount" within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and "Excise Tax" shall mean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. (ii) The determination as to which of the alternative provisions of Paragraph 8(d)(iv)(A) shall apply to Executive shall be made by KPMG LLP or any other nationally recognized accounting firm selected by the Employers (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Employers and Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Employers or Executive. For purposes of determining which of the alternative provisions of Paragraph 8(d)(iv)(A) shall apply, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Employers and Executive. (e) Fees and Expenses. The Employers shall pay to the Executive all reasonable legal and arbitration fees and expenses incurred by Executive in successfully obtaining or enforcing any right or benefit provided in Section 8 of this Agreement. 9. Non-competition and Confidential Information. (a) Non-competition. During the term of Executive's employment with the Employers, and, if Executive's employment with the Employers terminates for any reason at least 90 days prior to a Change in Control, then during the period after such termination of employment equal to the longer of (x) one year following the Date of Termination, and (y) three years following the Date of Termination if the Executive receives payments or benefits pursuant to Sections 7(b), 7(d) or 8(c) hereof, the Executive will not, directly or indirectly, whether as owner, partner, shareholder, consultant, agent, employee, co-venturer or otherwise, or through any person, association or entity, become an employee of or a consultant to, become a Director of or acquire any ownership interest in, or carry on, operate, manage, control, or become involved in any manner with any bank (or any financial institution that engages in consumer banking) that maintains or operates an office or branch in any city or town where the Employers maintain or operate an office or branch as of the Date of Termination, nor will Executive attempt to hire any employee of the Employers, assist (but not including giving references) in such hiring by any other person, association or entity, encourage any such employee to terminate his or her relationship with the Employers, or solicit or encourage any customer of the Employers to terminate or reduce its 9 relationship with the Employers, or to conduct with any other person, association or entity any business or activity which such customer conducts or could conduct with the Employers, whether or not the Employers' relationship with such customer was originally established in whole or in part by the Executive; provided, however, that the foregoing shall not prohibit the Executive from owning up to two percent (2%) of the outstanding stock of a publicly traded company engaged in the banking or financial services industry. (b) Confidential Information. The Executive will not at any time disclose to any other person, association or entity (except as required by applicable law or in connection with the performance of his duties and responsibilities hereunder), or use for his own benefit or gain, any confidential information of the Employers obtained by him incident to his employment with the Employers. The term "confidential information" includes, without limitation, financial information, business plans, business practices, customer lists, prospects and opportunities (such as lending relationships, trust relationships, financial product developments, or possible acquisitions or dispositions of businesses or facilities) which have been implemented, discussed or considered by the Employers but does not include any information which has become part of the public domain by means other than the Executive's non-observance of his obligations hereunder. (c) Relief. The Executive agrees that the Employers shall be entitled to injunctive relief for any breach by him of the covenants contained in Section 9(a) or 9(b). In addition, notwithstanding anything herein or in any option plan or agreement to the contrary, with respect to any stock option granted to the Executive by the Employers on or after the date hereof (the "New Options"), upon any breach by Executive of the covenants contained in Section 9(a) then (i) all New Options shall immediately terminate and be of no further force and effect, and (ii) with respect to any New Options that were exercised during the one year period immediately prior to such breach (A) to the extent Executive owns any shares that he received as a result of such option exercise, then Executive shall sell to the Employers (and the Employers shall purchase from Executive) such shares for an aggregate purchase price equal to the lesser of (x) the aggregate exercise price paid by Executive for such shares, or (y) the fair market value of such shares, and (B) to the extent Executive no longer owns any shares that he received as a result of such option exercise, the Executive shall pay to the Employers an amount of cash equal to the sum of (x) any gain realized upon the exercise of such option, and (y) any gain realized upon the sale or transfer of such shares. (d) Interpretation. In the event that any provision of this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a period of time, too large a geographic area, or too great a range of activities, it shall be interpreted to extend only over the maximum period of time, geographic area, or range of activities as to which it may be enforceable. As used in this Section 9, the term "Employers" means the Bank, the Company and their affiliates. 10. Conflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the performance of his obligations hereunder will not breach or be in conflict with any other agreement to which he is a party or is bound, and that he is not now subject 10 to any covenants against competition or similar covenants which would affect the performance of his obligations hereunder. 11. Withholding. All payments made by the Employers under this Agreement shall be net of any tax or other amounts required to be withheld by the Employers under applicable law. 12. 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 rules of 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. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. 13. Assignment; Successors and Assigns, etc. Neither the Employers 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; provided, however, that the Employers may assign their rights under this Agreement without the consent of the Executive in the event the Employers shall hereafter effect a reorganization, consolidate with or merge into any other party, or transfer all or substantially all of their properties or assets to any other party. 14. 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. 15. 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. The provisions of Sections 8(d), 8(e), 9 and 12 shall survive the termination of this Agreement. 16. 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 Employers or, in the case of the Employers, at either of their main offices, attention of the President. 17. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Executive and by duly authorized representatives of the Employers. 18. 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. 11 19. Prior Agreements. This Agreement shall supercede and replace in all respects the Employment Agreement and the Severance Agreement. All other agreements that may exist between the Employers and Executive that provide for the payment of any compensation or benefits to Executive shall survive. 12 IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Employers and the Executive, as of the date first above written. MASSBANK By: /s/ Gerard H. Brandi --------------------------- Gerard H. Brandi Title: President & CEO MASSBANK CORP. By: /s/ Gerard H. Brandi --------------------------- Gerard H. Brandi Title: President & CEO /s/ Reginald E. Cormier ------------------------------- Reginald E. Cormier 13 EX-10.3.19 6 dex10319.txt AMENDED EMPLOYMENT AGREEMENT, DONALD R. WASHBURN EXHIBIT 10.3.19 AMENDED AND RESTATED EMPLOYMENT AGREEMENT This Amended and Restated Employment Agreement ("Agreement") is made as of the 28th day of October, 2002, by and between MASSBANK, a Massachusetts savings bank with its main office in Reading, Massachusetts (the "Bank"), and Donald R. Washburn (the "Executive"). WITNESSETH WHEREAS, the Bank and the Executive entered into an Employment Agreement, dated as of February 1, 1993 (the "Employment Agreement"); WHEREAS, the Bank and the Executive entered into an Executive Severance Agreement, dated as of December 23, 1993 (the "Severance Agreement"); WHEREAS, the Executive participates in the Bank's Deferred Compensation Program (the "Deferred Compensation Program"); WHEREAS, the parties hereto desire to provide for the Executive's continued employment by the Bank and to delineate the Executive's and the Bank's rights and obligations arising in connection therewith, including in the event of a Change in Control (as defined herein) subject to the amended terms and conditions set forth herein; and WHEREAS, the parties hereto intend that this Agreement shall be an amendment and restatement of the Employment Agreement and the Severance Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Bank and the Executive agree as follows: 1. Employment. The Bank agrees to employ the Executive and the Executive agrees to serve in the employ of the Bank on the terms and conditions hereinafter set forth. 2. Capacity. The Executive shall serve as an officer of the Bank in such capacity as the Board of Directors may from time to time determine. In such capacity the Executive shall, subject to the By-laws of the Bank and to the direction of its President, Board of Directors and other appropriate officers, have responsibility for such functions and duties as he may be directed from time to time by the President or other appropriate officer of the Bank. 3. Term. Subject to the applicable provisions herein, the term of the Executive's employment hereunder shall be for two years from the date hereof; provided, however, that the term shall be extended automatically by an additional one day commencing on the first day following the date hereof and on each subsequent day thereafter, unless either the Executive or the Bank gives written notice to the other of such party's election not to extend the term of this Agreement. The last day of the term of the Executive's employment hereunder, as so extended from time to time, is herein sometimes referred to as the "Expiration Date." 4. Compensation and Benefits. The regular compensation and benefits payable to the Executive under this Agreement shall be as follows: (a) Salary. For all services rendered by the Executive under this Agreement, the Bank shall pay the Executive a salary equal to his present salary at the Bank, subject to increase from time to time in the sole discretion of the Board of Directors upon the recommendation of the Compensation Committee or the Chief Executive Officer of the Bank. The Executive's salary shall be payable in periodic installments in accordance with the Bank's usual practices for its executives. (b) Regular Benefits. The Executive shall also be entitled to participate in those medical insurance plans, life insurance plans, disability income plans, retirement plans, bonus incentive plans and other benefit plans from time to time in effect generally for executives of the Bank. Such participation shall be subject to (i) the terms of the applicable plan documents, (ii) generally applicable policies of the Bank and (iii) the discretion of the Board of Directors of the Bank or any administrative or other committee provided for in or contemplated by such plan. (c) Business Expenses. The Bank shall reimburse the Executive for all reasonable travel and other business expenses incurred by him in the performance of his duties and responsibilities, subject to the Bank's usual practices and policies in connection therewith and to such reasonable requirements with respect to substantiation and documentation as may from time to time be specified by the Bank. (d) Vacation. The Executive shall be entitled to vacation in accordance with the Bank's usual practices for its executives. 5. Extent of Service. During his employment hereunder, the Executive shall devote his full business time, best efforts and business judgment, skill and knowledge to the advancement of the interests of the Bank and to the discharge of his duties and responsibilities hereunder. The Executive shall comply at all times with all Bank policies. He shall not engage in any other business activity, except as may be approved by the President of the Bank or its Board of Directors; provided, however, that nothing herein shall be construed as preventing the Executive from: (a) Investing his assets in a manner not prohibited by Section 9 hereof, and in such form or manner as shall not require any material services on his part in the operations or affairs of the companies or other entities in which such investments are made; (b) Serving on the board of directors of any company, subject to the approval of the Chief Executive Officer of the Bank and the prohibitions set forth in Section 9 and provided that he shall not be required to render any material services with respect to the operations or affairs of any such company; or (c) Engaging in religious, charitable or other community or non - -profit activities which do not impair his ability to fulfill his duties and responsibilities under this Agreement. 2 6. Termination. Notwithstanding the provisions of Section 3 hereof, the Executive's employment hereunder may be terminated without any breach of this Agreement under the following circumstances: (a) Death. In the event of the Executive's death during the Executive's employment hereunder, the Executive's employment shall terminate on the date of his death. (b) Disability. In the event of the Executive's "disability" during the Executive's employment hereunder, the Executive's employment may be terminated by the Bank. For purposes of this Agreement, "disability" shall mean the Executive's incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his duties with the Bank for a period of six consecutive months if the Bank shall have given the Executive a notice of termination and, within 30 days after such notice is given, the Executive shall not have returned to the full-time performance of his duties. (c) Termination by the Bank for Cause. The Executive's employment hereunder may be terminated for "cause" without further liability on the part of the Bank effective immediately upon a determination of the President or the Board of Directors that such "cause" exists. For purposes hereof, any one or more of the following shall constitute "cause" for such termination: (i) Dishonesty of the Executive with respect to the Bank or any affiliate thereof; (ii) Commission by the Executive of a crime punishable as a felony; (iii) Failure by the Executive to perform in a satisfactory manner a substantial portion of his duties and responsibilities hereunder; or (iv) Breach by the Executive of any term of this Agreement, including without limitation Section 9 hereof. (d) Termination by the Bank Without Cause. The Executive's employment with the Bank may be terminated without cause at any time by the Bank. (e) Termination by the Executive. The Executive's employment with the Bank may be terminated by Executive at any time, including for Good Reason following a Change in Control. For purposes of this Agreement, Good Reason shall mean the occurrence of any of the following events: (i) A substantial adverse change, not consented to by the Executive, in the nature or scope of the Executive's title, responsibilities, authorities, powers, reporting relationship, functions or duties from the title, responsibilities, authorities, powers, reporting relationship, functions or duties exercised by the Executive immediately prior to the Change in Control; or 3 (ii) 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; or (iii) The relocation of the Bank's offices at which the Executive is principally employed immediately prior to the date of a Change in Control to a location more than 25 miles from such offices, or the requirement by the Bank for the Executive to be based anywhere other than the Bank's offices at such location, except for required travel on the Bank's business to an extent substantially consistent with the Executive's business travel obligations immediately prior to the Change in Control; or (iv) The failure by the Bank to pay to the Executive any portion of his compensation or to pay to the Executive any portion of an installment of deferred compensation under any deferred compensation program of the Bank within 15 days of the date such compensation is due without prior written consent of the Executive; or (v) Breach by the Bank of any provision of this Agreement, the SERP or any other agreement that may exist from time to time between the Executive and the Bank that provides for the payment of any compensation or benefits to Executive; or (vi) The failure by the Bank to obtain and deliver to the Executive an effective agreement from any successor to assume and agree to perform this Agreement. (f) Date of Termination. "Date of Termination" shall mean: (A) if Executive's employment is terminated by his death, the date of his death; (B) if Executive's employment is terminated by reason of his disability, 30 days after the date on which a notice of termination is given, (C) if Executive's employment is terminated by the Bank without cause, 60 days after the date on which a notice of termination is given; and (D) if Executive's employment is terminated for any other reason, the date on which a notice of termination is given. 7. Compensation Upon Termination. (a) Termination Due to Death. If Executive's employment terminates by reason of his death, the Bank shall, within 90 days of death, pay in a lump sum cash payment to such person as Executive shall designate in a notice filed with the Bank or, if no such person is designated, to Executive's estate, Executive's accrued and unpaid salary to the date of his death, plus his accrued and unpaid incentive compensation, if any. Upon the death of Executive, all unvested stock options granted to Executive shall immediately vest and become fully exercisable, and Executive's estate or other legal representatives shall have one year from the Date of Termination, to exercise all stock options granted to Executive. All other stock-based grants and awards held by Executive shall vest upon the death of Executive. For a period of one year following the Date of Termination, the Bank shall pay such health insurance premiums as may be necessary to allow Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received prior to the Date of Termination. In addition to the foregoing, any payments to which Executive's spouse, beneficiaries, or estate may be entitled under any employee benefit plan 4 shall also be paid in accordance with the terms of such plan or arrangement. Such payments, in the aggregate, shall fully discharge the Bank's obligations hereunder. (b) Disability. In the event of termination pursuant to Section 6(b), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus his accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 7(b)) in a form and manner satisfactory to the Bank: (i) The Executive shall continue to receive his full salary under Section 4(a) of this Agreement until the earlier of his death, his becoming eligible for disability income under the Bank's disability income plan or three years following the Date of Termination; (ii) For a period of three years following the Date of Termination, the Bank shall pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iii) All unvested stock options granted to Executive shall immediately vest and become exercisable, and the Executive or his legal representative shall have one year from the Date of Termination to exercise all stock options, subject to the provisions of Section 9(c). All other stock-based grants and awards held by Executive shall immediately vest upon the Date of Termination. (c) Termination by the Bank for Cause. In the event of termination pursuant to Section 6(c), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination. Thereafter, the Bank shall have no further obligation to Executive except as otherwise expressly provided under this Agreement, provided that any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Bank in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, all stock options held by Executive as of the Date of Termination shall immediately terminate and be of no further force and effect, and all other stock-based grants and awards shall be cancelled or terminated in accordance with their terms. (d) Termination by the Bank Without Cause. In the event of termination pursuant to Section 6(d), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus his accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the 5 right to receive the payments or benefits set forth in this Section 7(d)) in a form and manner satisfactory to the Bank: (i) The Bank shall within 30 days following the Date of Termination pay Executive in a lump sum cash payment an amount equal to three times the sum of (A) Executive's current base salary and (B) the greater of (1) his immediate prior fiscal year's bonus or (2) the average of the Executive's bonus for the immediate past three fiscal years; (ii) Upon the Date of Termination, each unvested stock option and any other stock-based grants and awards held by Executive shall immediately vest and become exercisable by the Executive. Subject to the provisions of Section 9(c), each such stock option may be exercised by Executive within 180 days after the Date of Termination; (iii) In addition to any other benefits to which Executive may be entitled in accordance with the Bank's then existing severance policies, the Bank shall, for a period of three years commencing on the Date of Termination, pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to continue to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iv) Except as expressly set forth in this Section 7(d) or required by applicable law, the Executive shall not be entitled to any other payments or benefits from the Bank following his termination without cause. Notwithstanding the foregoing, the terms of this Section 7(d) shall not apply to a termination with respect to which Executive is entitled to receive benefits pursuant to Section 8(c). (e) Termination by the Executive. In the event of termination pursuant to Section 6(e), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination. Thereafter, the Bank shall have no further obligation to Executive except as otherwise expressly provided under this Agreement, provided that any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Bank in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, subject to the provisions of Section 9(c), all vested but unexercised stock options held by Executive as of the Date of Termination must be exercised by Executive within three months following the Date of Termination or by the end of the option term, if earlier. All other stock-based grants and awards held by Executive shall vest or be canceled upon the Date of Termination in accordance with their terms. Notwithstanding the foregoing, the terms of this Section 7(e) shall not apply to a termination with respect to which Executive is entitled to receive benefits pursuant to Section 8(c). 6 8. Certain Change in Control Payments. (a) Purpose. The provisions of this Section 8 shall apply if the Date of Termination is within 24 months after the first event constituting a Change in Control. The provisions of this Section 8 shall terminate and be of no further force or effect beginning on the second anniversary of a Change in Control. (b) A "Change in Control" shall be deemed to have occurred in any one of the following events: (i) Any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Act) (other than MASSBANK Corp. ("the Company"), any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities; (ii) Persons who, as of October 1, 2002, constituted the Company's Board of Directors (the "Incumbent Board") 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 of Directors of the Company, provided that any person becoming a director of the Company subsequent to October 1, 2002 whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Agreement, be considered a member of the Incumbent Board; (iii) The stockholders of the Company approve a merger or consolidation of the Company with any other corporation or other entity, 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 60% 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 than 50% of the combined voting power of the Company's then outstanding securities; or (iv) The stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. (c) Severance Payment. In the event within 24 months after a Change in Control the Executive's employment is terminated by the Bank without cause (pursuant to Section 6(d)) or by the Executive for Good Reason (pursuant to Section 6(e)), then in lieu of the benefits provided in Sections 7 7(d) and 7(e) above the Executive shall be entitled to the following benefits, subject to signing by Executive of a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 8) in a form and manner satisfactory to the Bank: (i) The Bank shall pay to the Executive an amount equal to three times the "base amount" (as such term is defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code")) applicable to the Executive, payable in one lump-sum cash payment no later than 30 days following the Date of Termination (as such term is defined in Section 6(f)); and (ii) All unvested stock options and other stock based awards granted to Executive shall immediately vest and become exercisable by the Executive. Each such stock option, may be exercised by Executive within 180 days after the Date of Termination (iii) In addition to any other benefits to which the Executive may be entitled in accordance with the Bank's then existing severance policies, the Bank shall, for a period of three years commencing on the Date of Terminations, pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to continue to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination. (d) Additional Limitation. (i) Anything in this Agreement to the contrary notwithstanding, in the event that any compensation, payment or distribution by the Bank to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Severance Payments"), would be subject to the excise tax imposed by Section 4999 of the Code the following provisions shall apply: (A) If the Severance Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Payments which are in excess of the Threshold Amount (as defined below), are greater than or equal to the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement. (B) If the Threshold Amount is less than (x) the Severance Payments, but greater than (y) the Severance Payments reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes on the amount of the Severance Payments which are in excess of the Threshold Amount, then the benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the maximum Severance Payments shall not exceed the Threshold Amount. To the extent that there is more than one method of reducing the payments to bring them within the Threshold Amount, Executive shall determine which method shall be followed; provided that if Executive fails to make such 8 determination within 45 days after the Bank has sent Executive written notice of the need for such reduction, the Bank may determine the amount of such reduction in its sole discretion. For the purposes of this Paragraph 8(d)(iv), "Threshold Amount" shall mean three times Executive's "base amount" within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and "Excise Tax" shall mean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. (ii) The determination as to which of the alternative provisions of Paragraph 8(d)(iv)(A) shall apply to Executive shall be made by KPMG LLP or any other nationally recognized accounting firm selected by the Bank (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Bank and Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Bank or Executive. For purposes of determining which of the alternative provisions of Paragraph 8(d)(iv)(A) shall apply, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Bank and Executive. (e) Fees and Expenses. The Bank shall pay to the Executive all reasonable legal and arbitration fees and expenses incurred by Executive in successfully obtaining or enforcing any right or benefit provided in Section 8 of this Agreement. 9. Non-competition and Confidential Information. (a) Non-competition. During the term of Executive's employment with the Bank, and, if Executive's employment with the Bank terminates for any reason at least 90 days prior to a Change in Control, then during the period after such termination of employment equal to the longer of (x) one year following the Date of Termination, and (y) three years following the Date of Termination if the Executive receives payments or benefits pursuant to Sections 7(b), 7(d) or 8(c) hereof, the Executive will not, directly or indirectly, whether as owner, partner, shareholder, consultant, agent, employee, co-venturer or otherwise, or through any person, association or entity, become an employee of or a consultant to, become a Director of or acquire any ownership interest in, or carry on, operate, manage, control, or become involved in any manner with any bank (or any financial institution that engages in consumer banking) that maintains or operates an office or branch in any city or town where the Bank maintains or operates an office or branch as of the Date of Termination, nor will Executive attempt to hire any employee of the Bank, assist (but not including giving references) in such hiring by any other person, association or entity, encourage any such employee to terminate his or her relationship with the Bank, or solicit or encourage any customer of the Bank to terminate or reduce its relationship with the Bank, or to conduct with any other person, association or entity any 9 business or activity which such customer conducts or could conduct with the Bank, whether or not the Bank's relationship with such customer was originally established in whole or in part by the Executive; provided, however, that the foregoing shall not prohibit the Executive from owning up to two percent (2%) of the outstanding stock of a publicly traded company engaged in the banking or financial services industry. (b) Confidential Information. The Executive will not at any time disclose to any other person, association or entity (except as required by applicable law or in connection with the performance of his duties and responsibilities hereunder), or use for his own benefit or gain, any confidential information of the Bank obtained by him incident to his employment with the Bank. The term "confidential information" includes, without limitation, financial information, business plans, business practices, customer lists, prospects and opportunities (such as lending relationships, trust relationships, financial product developments, or possible acquisitions or dispositions of businesses or facilities) which have been implemented, discussed or considered by the Bank but does not include any information which has become part of the public domain by means other than the Executive's non-observance of his obligations hereunder. (c) Relief. The Executive agrees that the Bank shall be entitled to injunctive relief for any breach by him of the covenants contained in Section 9(a) or 9(b). In addition, notwithstanding anything herein or in any option plan or agreement to the contrary, with respect to any stock option granted to the Executive by the Bank on or after the date hereof (the "New Options"), upon any breach by Executive of the covenants contained in Section 9(a) then (i) all New Options shall immediately terminate and be of no further force and effect, and (ii) with respect to any New Options that were exercised during the one year period immediately prior to such breach (A) to the extent Executive owns any shares that he received as a result of such option exercise, then Executive shall sell to the Bank (and the Bank shall purchase from Executive) such shares for an aggregate purchase price equal to the lesser of (x) the aggregate exercise price paid by Executive for such shares, or (y) the fair market value of such shares, and (B) to the extent Executive no longer owns any shares that he received as a result of such option exercise, the Executive shall pay to the Bank an amount of cash equal to the sum of (x) any gain realized upon the exercise of such option, and (y) any gain realized upon the sale or transfer of such shares. (d) Interpretation. In the event that any provision of this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a period of time, too large a geographic area, or too great a range of activities, it shall be interpreted to extend only over the maximum period of time, geographic area, or range of activities as to which it may be enforceable. As used in this Section 9, the term "Bank" means the Bank and its affiliates. 10. Conflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the performance of his obligations hereunder will not breach or be in conflict with any other agreement to which he is a party or is bound, and that he is not now subject to any covenants against competition or similar covenants which would affect the performance of his obligations hereunder. 10 11. 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. 12. 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 rules of 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. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. 13. Assignment; Successors and Assigns, etc. 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; provided, however, that the Bank may assign its rights under this Agreement without the consent of the Executive in the event the Bank shall hereafter effect a reorganization, consolidate with or merge into any other party, or transfer all or substantially all of its properties or assets to any other party. 14. 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. 15. 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. The provisions of Sections 8(d), 8(e), 9 and 12 shall survive the termination of this Agreement. 16. 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 President. 17. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Executive and by duly authorized representatives of the Bank. 18. 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. 19. Prior Agreements. This Agreement shall supercede and replace in all respects the Employment Agreement and the Severance Agreement. The Deferred Compensation Program and all other agreements that may exist between 11 the Bank and Executive that provide for the payment of any compensation or benefits to Executive shall survive. 12 IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Bank and the Executive, as of the date first above written. MASSBANK By: /s/ Gerard H. Brandi ---------------------------------- Gerard H. Brandi Title: President & CEO /s/ Donald R. Washburn -------------------------------------- Donald R. Washburn 13 EX-10.3.20 7 dex10320.txt AMENDED EMPLOYMENT AGREEMENT, DONNA H. WEST EXHIBIT 10.3.20 AMENDED AND RESTATED EMPLOYMENT AGREEMENT This Amended and Restated Employment Agreement ("Agreement") is made as of the 28th day of October, 2002, by and between MASSBANK, a Massachusetts savings bank with its main office in Reading, Massachusetts (the "Bank"), MASSBANK Corp., a Delaware corporation (the "Company"), and Donna H. West (the "Executive"). The Company and the Bank shall hereinafter be collectively referred to as the "Employers". WITNESSETH WHEREAS, the Employers and the Executive entered into an Employment Agreement, dated as of February 1, 1993 (the "Employment Agreement"); WHEREAS, the Employers and the Executive entered into an Executive Severance Agreement, dated as of December 23, 1993 (the "Severance Agreement"); WHEREAS, the Executive participates in the Bank's Deferred Compensation Program (the "Deferred Compensation Program"); WHEREAS, the parties hereto desire to provide for the Executive's continued employment by the Employers and to delineate the Executive's and the Employers' rights and obligations arising in connection therewith, including in the event of a Change in Control (as defined herein) subject to the amended terms and conditions set forth herein; and WHEREAS, the parties hereto intend that this Agreement shall be an amendment and restatement of the Employment Agreement and the Severance Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Employers and the Executive agree as follows: 1. Employment. The Employers agree to employ the Executive and the Executive agrees to serve in the employ of the Employers on the terms and conditions hereinafter set forth. 2. Capacity. The Executive shall serve as an officer of the Bank and of the Company in such capacity(ies) as their respective Boards of Directors may from time to time determine. In such capacity(ies) the Executive shall, subject to the By-laws of the Bank and the Company, as the case may be, and to the direction of the President, Board of Directors and other appropriate officers, have responsibility for such functions and duties as she may be directed from time to time by the President or other appropriate officer of the Employers. 3. Term. Subject to the applicable provisions herein, the term of the Executive's employment hereunder shall be for two years from the date hereof; provided, however, that the term shall be extended automatically by an additional one day commencing on the first day following the date hereof and on each subsequent day thereafter, unless either the Executive or the Employers give written notice to the other of such party's election not to extend the term of this Agreement. The last day of the term of the Executive's employment hereunder, as so extended from time to time, is herein sometimes referred to as the "Expiration Date." 4. Compensation and Benefits. The regular compensation and benefits payable to the Executive under this Agreement shall be as follows: (a) Salary. For all services rendered by the Executive under this Agreement, the Employers shall pay the Executive a salary equal to her present salary, subject to increase from time to time in the sole discretion of the Boards of Directors upon the recommendation of the Compensation Committee or the Chief Executive Officer. The Executive's salary shall be payable in periodic installments in accordance with the Employers' usual practices for its executives. (b) Regular Benefits. The Executive shall also be entitled to participate in those medical insurance plans, life insurance plans, disability income plans, retirement plans, bonus incentive plans and other benefit plans from time to time in effect generally for executives of the Employers. Such participation shall be subject to (i) the terms of the applicable plan documents, (ii) generally applicable policies of the Employers and (iii) the discretion of the Boards of Directors of the Employers or any administrative or other committee provided for in or contemplated by such plan. (c) Business Expenses. The Employers shall reimburse the Executive for all reasonable travel and other business expenses incurred by her in the performance of her duties and responsibilities, subject to the Employers' usual practices and policies in connection therewith and to such reasonable requirements with respect to substantiation and documentation as may from time to time be specified by the Employers. (d) Vacation. The Executive shall be entitled to vacation in accordance with the Employers' usual practices for its executives. 5. Extent of Service. During her employment hereunder, the Executive shall devote her full business time, best efforts and business judgment, skill and knowledge to the advancement of the interests of the Employers and to the discharge of her duties and responsibilities hereunder. The Executive shall comply at all times with all Bank and Company policies. She shall not engage in any other business activity, except as may be approved by the President of the Company or its Board of Directors; provided, however, that nothing herein shall be construed as preventing the Executive from: (a) Investing her assets in a manner not prohibited by Section 9 hereof, and in such form or manner as shall not require any material services on her part in the operations or affairs of the companies or other entities in which such investments are made; (b) Serving on the board of directors of any company, subject to the approval of the Chief Executive Officer of the Company and the prohibitions set forth in Section 9 and provided that she shall not be 2 required to render any material services with respect to the operations or affairs of any such company; or (c) Engaging in religious, charitable or other community or non-profit activities which do not impair her ability to fulfill her duties and responsibilities under this Agreement. 6. Termination. Notwithstanding the provisions of Section 3 hereof, the Executive's employment hereunder may be terminated without any breach of this Agreement under the following circumstances: (a) Death. In the event of the Executive's death during the Executive's employment hereunder, the Executive's employment shall terminate on the date of her death. (b) Disability. In the event of the Executive's "disability" during the Executive's employment hereunder, the Executive's employment may be terminated by the Employers. For purposes of this Agreement, "disability" shall mean the Executive's incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of her duties with the Employers for a period of six consecutive months if the Employers shall have given the Executive a notice of termination and, within 30 days after such notice is given, the Executive shall not have returned to the full-time performance of her duties. (c) Termination by the Employers for Cause. The Executive's employment hereunder may be terminated for "cause" without further liability on the part of the Employers effective immediately upon a determination of the President or the Board of Directors that such "cause" exists. For purposes hereof, any one or more of the following shall constitute "cause" for such termination: (i) Dishonesty of the Executive with respect to the Employers or any affiliate thereof; (ii) Commission by the Executive of a crime punishable as a felony; (iii) Failure by the Executive to perform in a satisfactory manner a substantial portion of her duties and responsibilities hereunder; or (iv) Breach by the Executive of any term of this Agreement, including without limitation Section 9 hereof. (d) Termination by the Employers Without Cause. The Executive's employment with the Employers may be terminated without cause at any time by the Employers. (e) Termination by the Executive. The Executive's employment with the Employers may be terminated by Executive at any time, including for Good Reason following a Change in Control. For purposes of this Agreement, Good Reason shall mean the occurrence of any of the following events: (i) A substantial adverse change, not consented to by the Executive, in the nature or scope of the Executive's title, 3 responsibilities, authorities, powers, reporting relationship, functions or duties from the title, responsibilities, authorities, powers, reporting relationship, functions or duties exercised by the Executive immediately prior to the Change in Control; or (ii) 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; or (iii) The relocation of the Employers' offices at which the Executive is principally employed immediately prior to the date of a Change in Control to a location more than 25 miles from such offices, or the requirement by the Employers for the Executive to be based anywhere other than the Employers' offices at such location, except for required travel on the Employers' business to an extent substantially consistent with the Executive's business travel obligations immediately prior to the Change in Control; or (iv) The failure by the Employers to pay to the Executive any portion of her compensation or to pay to the Executive any portion of an installment of deferred compensation under any deferred compensation program of the Employers within 15 days of the date such compensation is due without prior written consent of the Executive; or (v) Breach by the Employers of any provision of this Agreement, the SERP or any other agreement that may exist from time to time between the Executive and the Employers that provides for the payment of any compensation or benefits to Executive; or (vi) The failure by the Employers to obtain and deliver to the Executive an effective agreement from any successor to assume and agree to perform this Agreement. (f) Date of Termination. "Date of Termination" shall mean: (A) if Executive's employment is terminated by her death, the date of her death; (B) if Executive's employment is terminated by reason of her disability, 30 days after the date on which a notice of termination is given, (C) if Executive's employment is terminated by the Employers without cause, 60 days after the date on which a notice of termination is given; and (D) if Executive's employment is terminated for any other reason, the date on which a notice of termination is given. 7. Compensation Upon Termination. (a) Termination Due to Death. If Executive's employment terminates by reason of her death, the Employers shall, within 90 days of death, pay in a lump sum cash payment to such person as Executive shall designate in a notice filed with the Employers or, if no such person is designated, to Executive's estate, Executive's accrued and unpaid salary to the date of her death, plus her accrued and unpaid incentive compensation, if any. Upon the death of Executive, all unvested stock options granted to Executive shall immediately vest and become fully exercisable, and Executive's estate or other legal representatives shall have one year from the Date of Termination, to exercise all stock options granted to Executive. All other stock-based grants and awards held by Executive shall vest upon the death of Executive. For a period of one year following the Date of 4 Termination, the Employers shall pay such health insurance premiums as may be necessary to allow Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received prior to the Date of Termination. In addition to the foregoing, any payments to which Executive's spouse, beneficiaries, or estate may be entitled under any employee benefit plan shall also be paid in accordance with the terms of such plan or arrangement. Such payments, in the aggregate, shall fully discharge the Employers' obligations hereunder. (b) Disability. In the event of termination pursuant to Section 6(b), the Employers shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus her accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 7(b)) in a form and manner satisfactory to the Employers: (i) The Executive shall continue to receive her full salary under Section 4(a) of this Agreement until the earlier of her death, her becoming eligible for disability income under the Employers' disability income plan or three years following the Date of Termination; (ii) For a period of three years following the Date of Termination, the Employers shall pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iii) All unvested stock options granted to Executive shall immediately vest and become exercisable, and the Executive or her legal representative shall have one year from the Date of Termination to exercise all stock options, subject to the provisions of Section 9(c). All other stock-based grants and awards held by Executive shall immediately vest upon the Date of Termination. (c) Termination by the Employers for Cause. In the event of termination pursuant to Section 6(c), the Employers shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination. Thereafter, the Employers shall have no further obligation to Executive except as otherwise expressly provided under this Agreement, provided that any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Employers in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, all stock options held by Executive as of the Date of Termination shall immediately terminate and be of no further force and effect, and all other stock-based grants and awards shall be cancelled or terminated in accordance with their terms. (d) Termination by the Employers Without Cause. In the event of termination pursuant to Section 6(d), the Employers shall, within 90 days 5 of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus her accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 7(d)) in a form and manner satisfactory to the Employers: (i) The Employers shall within 30 days following the Date of Termination pay Executive in a lump sum cash payment an amount equal to three times the sum of (A) Executive's current base salary and (B) the greater of (1) her immediate prior fiscal year's bonus or (2) the average of the Executive's bonus for the immediate past three fiscal years; (ii) Upon the Date of Termination, each unvested stock option and any other stock-based grants and awards held by Executive shall immediately vest and become exercisable by the Executive. Subject to the provisions of Section 9(c), each such stock option may be exercised by Executive within 180 days after the Date of Termination; (iii) In addition to any other benefits to which Executive may be entitled in accordance with the Employers' then existing severance policies, the Employers shall, for a period of three years commencing on the Date of Termination, pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to continue to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iv) Except as expressly set forth in this Section 7(d) or required by applicable law, the Executive shall not be entitled to any other payments or benefits from the Employers following her termination without cause. Notwithstanding the foregoing, the terms of this Section 7(d) shall not apply to a termination with respect to which Executive is entitled to receive benefits pursuant to Section 8(c). (e) Termination by the Executive. In the event of termination pursuant to Section 6(e), the Employers shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination. Thereafter, the Employers shall have no further obligation to Executive except as otherwise expressly provided under this Agreement, provided that any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Employers in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, subject to the provisions of Section 9(c), all vested but unexercised stock options held by Executive as of the Date of Termination must be exercised by Executive within three months following the Date of Termination or by the end of the option term, if earlier. All other stock-based grants and awards held by Executive shall vest or be canceled upon the Date of Termination in accordance with their terms. Notwithstanding the foregoing, the terms of 6 this Section 7(e) shall not apply to a termination with respect to which Executive is entitled to receive benefits pursuant to Section 8(c). 8. Certain Change in Control Payments. (a) Purpose. The provisions of this Section 8 shall apply if the Date of Termination is within 24 months after the first event constituting a Change in Control. The provisions of this Section 8 shall terminate and be of no further force or effect beginning on the second anniversary of a Change in Control. (b) A "Change in Control" shall be deemed to have occurred in any one of the following events: (i) Any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Act) (other than any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities; (ii) Persons who, as of October 1, 2002, constituted the Company's Board of Directors (the "Incumbent Board") 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 of Directors of the Company, provided that any person becoming a director of the Company subsequent to October 1, 2002 whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Agreement, be considered a member of the Incumbent Board; (iii) The stockholders of the Company approve a merger or consolidation of the Company with any other corporation or other entity, 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 60% 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 than 50% of the combined voting power of the Company's then outstanding securities; or (iv) The stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. (c) Severance Payment. In the event within 24 months after a Change in Control the Executive's employment is terminated by the Employers 7 without cause (pursuant to Section 6(d)) or by the Executive for Good Reason (pursuant to Section 6(e)), then in lieu of the benefits provided in Sections 7(d) and 7(e) above the Executive shall be entitled to the following benefits, subject to signing by Executive of a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 8) in a form and manner satisfactory to the Employers: (i) The Employers shall pay to the Executive an amount equal to three times the "base amount" (as such term is defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code")) applicable to the Executive, payable in one lump-sum cash payment no later than 30 days following the Date of Termination (as such term is defined in Section 6(f)); and (ii) All unvested stock options and other stock based awards granted to Executive shall immediately vest and become exercisable by the Executive. Each such stock option, may be exercised by Executive within 180 days after the Date of Termination (iii) In addition to any other benefits to which the Executive may be entitled in accordance with the Employers' then existing severance policies, the Employers shall, for a period of three years commencing on the Date of Terminations, pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to continue to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination. (d) Additional Limitation. (i) Anything in this Agreement to the contrary notwithstanding, in the event that any compensation, payment or distribution by the Employers to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Severance Payments"), would be subject to the excise tax imposed by Section 4999 of the Code the following provisions shall apply: (A) If the Severance Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Payments which are in excess of the Threshold Amount (as defined below), are greater than or equal to the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement. (B) If the Threshold Amount is less than (x) the Severance Payments, but greater than (y) the Severance Payments reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes on the amount of the Severance Payments which are in excess of the Threshold Amount, then the benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the maximum Severance Payments shall not exceed the Threshold Amount. To the extent that there is more than one method of reducing the payments to bring them within the 8 Threshold Amount, Executive shall determine which method shall be followed; provided that if Executive fails to make such determination within 45 days after the Employers have sent Executive written notice of the need for such reduction, the Employers may determine the amount of such reduction in its sole discretion. For the purposes of this Paragraph 8(d)(iv), "Threshold Amount" shall mean three times Executive's "base amount" within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and "Excise Tax" shall mean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. (ii) The determination as to which of the alternative provisions of Paragraph 8(d)(iv)(A) shall apply to Executive shall be made by KPMG LLP or any other nationally recognized accounting firm selected by the Employers (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Employers and Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Employers or Executive. For purposes of determining which of the alternative provisions of Paragraph 8(d)(iv)(A) shall apply, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Employers and Executive. (e) Fees and Expenses. The Employers shall pay to the Executive all reasonable legal and arbitration fees and expenses incurred by Executive in successfully obtaining or enforcing any right or benefit provided in Section 8 of this Agreement. 9. Non-competition and Confidential Information. (a) Non-competition. During the term of Executive's employment with the Employers, and, if Executive's employment with the Employers terminates for any reason at least 90 days prior to a Change in Control, then during the period after such termination of employment equal to the longer of (x) one year following the Date of Termination, and (y) three years following the Date of Termination if the Executive receives payments or benefits pursuant to Sections 7(b), 7(d) or 8(c) hereof, the Executive will not, directly or indirectly, whether as owner, partner, shareholder, consultant, agent, employee, co-venturer or otherwise, or through any person, association or entity, become an employee of or a consultant to, become a Director of or acquire any ownership interest in, or carry on, operate, manage, control, or become involved in any manner with any bank (or any financial institution that engages in consumer banking) that maintains or operates an office or branch in any city or town where the Employers maintain or operate an office or branch as of the Date of Termination, nor will Executive attempt to hire any employee of the Employers, assist (but not including giving references) 9 in such hiring by any other person, association or entity, encourage any such employee to terminate her or her relationship with the Employers, or solicit or encourage any customer of the Employers to terminate or reduce its relationship with the Employers, or to conduct with any other person, association or entity any business or activity which such customer conducts or could conduct with the Employers, whether or not the Employers' relationship with such customer was originally established in whole or in part by the Executive; provided, however, that the foregoing shall not prohibit the Executive from owning up to two percent (2%) of the outstanding stock of a publicly traded company engaged in the banking or financial services industry. (b) Confidential Information. The Executive will not at any time disclose to any other person, association or entity (except as required by applicable law or in connection with the performance of her duties and responsibilities hereunder), or use for her own benefit or gain, any confidential information of the Employers obtained by her incident to her employment with the Employers. The term "confidential information" includes, without limitation, financial information, business plans, business practices, customer lists, prospects and opportunities (such as lending relationships, trust relationships, financial product developments, or possible acquisitions or dispositions of businesses or facilities) which have been implemented, discussed or considered by the Employers but does not include any information which has become part of the public domain by means other than the Executive's non-observance of her obligations hereunder. (c) Relief. The Executive agrees that the Employers shall be entitled to injunctive relief for any breach by her of the covenants contained in Section 9(a) or 9(b). In addition, notwithstanding anything herein or in any option plan or agreement to the contrary, with respect to any stock option granted to the Executive by the Employers on or after the date hereof (the "New Options"), upon any breach by Executive of the covenants contained in Section 9(a) then (i) all New Options shall immediately terminate and be of no further force and effect, and (ii) with respect to any New Options that were exercised during the one year period immediately prior to such breach (A) to the extent Executive owns any shares that he received as a result of such option exercise, then Executive shall sell to the Employers (and the Employers shall purchase from Executive) such shares for an aggregate purchase price equal to the lesser of (x) the aggregate exercise price paid by Executive for such shares, or (y) the fair market value of such shares, and (B) to the extent Executive no longer owns any shares that he received as a result of such option exercise, the Executive shall pay to the Employers an amount of cash equal to the sum of (x) any gain realized upon the exercise of such option, and (y) any gain realized upon the sale or transfer of such shares. (d) Interpretation. In the event that any provision of this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a period of time, too large a geographic area, or too great a range of activities, it shall be interpreted to extend only over the maximum period of time, geographic area, or range of activities as to which it may be enforceable. As used in this Section 9, the term "Employers" means the Bank, the Company and their affiliates. 10 10. Conflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the performance of her obligations hereunder will not breach or be in conflict with any other agreement to which she is a party or is bound, and that she is not now subject to any covenants against competition or similar covenants which would affect the performance of her obligations hereunder. 11. Withholding. All payments made by the Employers under this Agreement shall be net of any tax or other amounts required to be withheld by the Employers under applicable law. 12. 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 rules of 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. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. 13. Assignment; Successors and Assigns, etc. Neither the Employers 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; provided, however, that the Employers may assign their rights under this Agreement without the consent of the Executive in the event the Employers shall hereafter effect a reorganization, consolidate with or merge into any other party, or transfer all or substantially all of their properties or assets to any other party. 14. 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. 15. 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. The provisions of Sections 8(d), 8(e), 9 and 12 shall survive the termination of this Agreement. 16. 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 Employers or, in the case of the Employers, at either of their main offices, attention of the President. 17. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Executive and by duly authorized representatives of the Employers. 11 18. 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. 19. Prior Agreements. This Agreement shall supercede and replace in all respects the Employment Agreement and the Severance Agreement. The Deferred Compensation Program and all other agreements that may exist between the Employers and Executive that provide for the payment of any compensation or benefits to Executive shall survive. 12 IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Employers and the Executive, as of the date first above written. MASSBANK By: /s/ Gerard H. Brandi ---------------------------- Gerard H. Brandi Title: President & CEO MASSBANK CORP. By: /s/ Gerard H. Brandi ---------------------------- Title: President & CEO /s/ Donna H. West ---------------------------- Donna H. West 13 EX-10.3.21 8 dex10321.txt EMPLOYMENT AGREEMENT, THOMAS J. QUEENEY EXHIBIT 10.3.21 EMPLOYMENT AGREEMENT This Employment Agreement ("Agreement") is made as of the 28th day of October, 2002, by and between MASSBANK, a Massachusetts savings bank with its main office in Reading, Massachusetts (the "Bank"), and Thomas J. Queeney (the "Executive"). WITNESSETH WHEREAS, the parties hereto desire to provide for the Executive's continued employment by the Bank and to delineate the Executive's and the Bank's rights and obligations arising in connection therewith, including in the event of a Change in Control (as defined herein) subject to the amended terms and conditions set forth herein. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Bank and the Executive agree as follows: 1. Employment. The Bank agrees to employ the Executive and the Executive agrees to serve in the employ of the Bank on the terms and conditions hereinafter set forth. 2. Capacity. The Executive shall serve as an officer of the Bank in such capacity as the Board of Directors may from time to time determine. In such capacity the Executive shall, subject to the By-laws of the Bank and to the direction of its President, Board of Directors and other appropriate officers, have responsibility for such functions and duties as he may be directed from time to time by the President or other appropriate officer of the Bank. 3. Term. Subject to the applicable provisions herein, the term of the Executive's employment hereunder shall be for two years from the date hereof; provided, however, that the term shall be extended automatically by an additional one day commencing on the first day following the date hereof and on each subsequent day thereafter, unless either the Executive or the Bank gives written notice to the other of such party's election not to extend the term of this Agreement. The last day of the term of the Executive's employment hereunder, as so extended from time to time, is herein sometimes referred to as the "Expiration Date." 4. Compensation and Benefits. The regular compensation and benefits payable to the Executive under this Agreement shall be as follows: (a) Salary. For all services rendered by the Executive under this Agreement, the Bank shall pay the Executive a salary equal to his present salary at the Bank, subject to increase from time to time in the sole discretion of the Board of Directors upon the recommendation of the Compensation Committee or the Chief Executive Officer of the Bank. The Executive's salary shall be payable in periodic installments in accordance with the Bank's usual practices for its executives. (b) Regular Benefits. The Executive shall also be entitled to participate in those medical insurance plans, life insurance plans, disability income plans, retirement plans, bonus incentive plans and other benefit plans from time to time in effect generally for executives of the Bank. Such participation shall be subject to (i) the terms of the applicable plan documents, (ii) generally applicable policies of the Bank and (iii) the discretion of the Board of Directors of the Bank or any administrative or other committee provided for in or contemplated by such plan. (c) Business Expenses. The Bank shall reimburse the Executive for all reasonable travel and other business expenses incurred by him in the performance of his duties and responsibilities, subject to the Bank's usual practices and policies in connection therewith and to such reasonable requirements with respect to substantiation and documentation as may from time to time be specified by the Bank. (d) Vacation. The Executive shall be entitled to vacation in accordance with the Bank's usual practices for its executives. 5. Extent of Service. During his employment hereunder, the Executive shall devote his full business time, best efforts and business judgment, skill and knowledge to the advancement of the interests of the Bank and to the discharge of his duties and responsibilities hereunder. The Executive shall comply at all times with all Bank policies. He shall not engage in any other business activity, except as may be approved by the President of the Bank or its Board of Directors; provided, however, that nothing herein shall be construed as preventing the Executive from: (a) Investing his assets in a manner not prohibited by Section 9 hereof, and in such form or manner as shall not require any material services on his part in the operations or affairs of the companies or other entities in which such investments are made; (b) Serving on the board of directors of any company, subject to the approval of the Chief Executive Officer of the Bank and the prohibitions set forth in Section 9 and provided that he shall not be required to render any material services with respect to the operations or affairs of any such company; or (c) Engaging in religious, charitable or other community or non-profit activities which do not impair his ability to fulfill his duties and responsibilities under this Agreement. 6. Termination. Notwithstanding the provisions of Section 3 hereof, the Executive's employment hereunder may be terminated without any breach of this Agreement under the following circumstances: (a) Death. In the event of the Executive's death during the Executive's employment hereunder, the Executive's employment shall terminate on the date of his death. (b) Disability. In the event of the Executive's "disability" during the Executive's employment hereunder, the Executive's employment may be terminated by the Bank. For purposes of this Agreement, "disability" shall mean the Executive's incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his 2 duties with the Bank for a period of six consecutive months if the Bank shall have given the Executive a notice of termination and, within 30 days after such notice is given, the Executive shall not have returned to the full-time performance of his duties. (c) Termination by the Bank for Cause. The Executive's employment hereunder may be terminated for "cause" without further liability on the part of the Bank effective immediately upon a determination of the President or the Board of Directors that such "cause" exists. For purposes hereof, any one or more of the following shall constitute "cause" for such termination: (i) Dishonesty of the Executive with respect to the Bank or any affiliate thereof; (ii) Commission by the Executive of a crime punishable as a felony; (iii) Failure by the Executive to perform in a satisfactory manner a substantial portion of his duties and responsibilities hereunder; or (iv) Breach by the Executive of any term of this Agreement, including without limitation Section 9 hereof. (d) Termination by the Bank Without Cause. The Executive's employment with the Bank may be terminated without cause at any time by the Bank. (e) Termination by the Executive. The Executive's employment with the Bank may be terminated by Executive at any time, including for Good Reason following a Change in Control. For purposes of this Agreement, Good Reason shall mean the occurrence of any of the following events: (i) A substantial adverse change, not consented to by the Executive, in the nature or scope of the Executive's title, responsibilities, authorities, powers, reporting relationship, functions or duties from the title, responsibilities, authorities, powers, reporting relationship, functions or duties exercised by the Executive immediately prior to the Change in Control; or (ii) 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; or (iii) The relocation of the Bank's offices at which the Executive is principally employed immediately prior to the date of a Change in Control to a location more than 25 miles from such offices, or the requirement by the Bank for the Executive to be based anywhere other than the Bank's offices at such location, except for required travel on the Bank's business to an extent substantially consistent with the Executive's business travel obligations immediately prior to the Change in Control; or (iv) The failure by the Bank to pay to the Executive any portion of his compensation or to pay to the Executive any portion of 3 an installment of deferred compensation under any deferred compensation program of the Bank within 15 days of the date such compensation is due without prior written consent of the Executive; or (v) Breach by the Bank of any provision of this Agreement or any other agreement that may exist from time to time between the Executive and the Bank that provides for the payment of any compensation or benefits to Executive; or (vi) The failure by the Bank to obtain and deliver to the Executive an effective agreement from any successor to assume and agree to perform this Agreement. (f) Date of Termination. "Date of Termination" shall mean: (A) if Executive's employment is terminated by his death, the date of his death; (B) if Executive's employment is terminated by reason of his disability, 30 days after the date on which a notice of termination is given, (C) if Executive's employment is terminated by the Bank without cause, 60 days after the date on which a notice of termination is given; and (D) if Executive's employment is terminated for any other reason, the date on which a notice of termination is given. 7. Compensation Upon Termination. (a) Termination Due to Death. If Executive's employment terminates by reason of his death, the Bank shall, within 90 days of death, pay in a lump sum cash payment to such person as Executive shall designate in a notice filed with the Bank or, if no such person is designated, to Executive's estate, Executive's accrued and unpaid salary to the date of his death, plus his accrued and unpaid incentive compensation, if any. Upon the death of Executive, all unvested stock options granted to Executive shall immediately vest and become fully exercisable, and Executive's estate or other legal representatives shall have one year from the Date of Termination, to exercise all stock options granted to Executive. All other stock-based grants and awards held by Executive shall vest upon the death of Executive. For a period of one year following the Date of Termination, the Bank shall pay such health insurance premiums as may be necessary to allow Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received prior to the Date of Termination. In addition to the foregoing, any payments to which Executive's spouse, beneficiaries, or estate may be entitled under any employee benefit plan shall also be paid in accordance with the terms of such plan or arrangement. Such payments, in the aggregate, shall fully discharge the Bank's obligations hereunder. (b) Disability. In the event of termination pursuant to Section 6(b), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus his accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 7(b)) in a form and manner satisfactory to the Bank: 4 (i) The Executive shall continue to receive his full salary under Section 4(a) of this Agreement until the earlier of his death, his becoming eligible for disability income under the Bank's disability income plan or two years following the Date of Termination; (ii) For a period of two years following the Date of Termination, the Bank shall pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iii) All unvested stock options granted to Executive shall immediately vest and become exercisable, and the Executive or his legal representative shall have one year from the Date of Termination to exercise all stock options, subject to the provisions of Section 9(c). All other stock-based grants and awards held by Executive shall immediately vest upon the Date of Termination. (c) Termination by the Bank for Cause. In the event of termination pursuant to Section 6(c), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination. Thereafter, the Bank shall have no further obligation to Executive except as otherwise expressly provided under this Agreement, provided that any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Bank in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, all stock options held by Executive as of the Date of Termination shall immediately terminate and be of no further force and effect, and all other stock-based grants and awards shall be cancelled or terminated in accordance with their terms. (d) Termination by the Bank Without Cause. In the event of termination pursuant to Section 6(d), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination, plus his accrued and unpaid incentive compensation, if any. In addition, the Executive shall be entitled to the following benefits, subject to the Executive signing a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 7(d)) in a form and manner satisfactory to the Bank: (i) The Bank shall within 30 days following the Date of Termination pay Executive in a lump sum cash payment an amount equal to two times the sum of (A) Executive's current base salary and (B) the greater of (1) his immediate prior fiscal year's bonus or (2) the average of the Executive's bonus for the immediate past three fiscal years; (ii) Upon the Date of Termination, each unvested stock option and any other stock-based grants and awards held by Executive shall immediately vest and become exercisable by the Executive. Subject to the provisions of Section 9(c), each such stock option may be exercised by Executive within 180 days after the Date of Termination; 5 (iii) In addition to any other benefits to which Executive may be entitled in accordance with the Bank's then existing severance policies, the Bank shall, for a period of two years commencing on the Date of Termination, pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to continue to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination; and (iv) Except as expressly set forth in this Section 7(d) or required by applicable law, the Executive shall not be entitled to any other payments or benefits from the Bank following his termination without cause. Notwithstanding the foregoing, the terms of this Section 7(d) shall not apply to a termination with respect to which Executive is entitled to receive benefits pursuant to Section 8(c). (e) Termination by the Executive. In the event of termination pursuant to Section 6(e), the Bank shall, within 90 days of the Date of Termination, pay to the Executive in a lump sum cash payment Executive's accrued and unpaid salary to the Date of Termination. Thereafter, the Bank shall have no further obligation to Executive except as otherwise expressly provided under this Agreement, provided that any such termination shall not adversely affect or alter Executive's rights under any employee benefit plan of the Bank in which Executive, at the Date of Termination, has a vested interest, unless otherwise provided in such employee benefit plan or any agreement or other instrument attendant thereto. In addition, subject to the provisions of Section 9(c), all vested but unexercised stock options held by Executive as of the Date of Termination must be exercised by Executive within three months following the Date of Termination or by the end of the option term, if earlier. All other stock-based grants and awards held by Executive shall vest or be canceled upon the Date of Termination in accordance with their terms. Notwithstanding the foregoing, the terms of this Section 7(e) shall not apply to a termination with respect to which Executive is entitled to receive benefits pursuant to Section 8(c). 8. Certain Change in Control Payments. (a) Purpose. The provisions of this Section 8 shall apply if the Date of Termination is within 24 months after the first event constituting a Change in Control. The provisions of this Section 8 shall terminate and be of no further force or effect beginning on the second anniversary of a Change in Control. (b) A "Change in Control" shall be deemed to have occurred in any one of the following events: (i) Any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "Act")) becomes a "beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the Act) (other than MASSBANK Corp. ("the Company"), any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), directly 6 or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities; (ii) Persons who, as of October 1, 2002, constituted the Company's Board of Directors (the "Incumbent Board") 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 of Directors of the Company, provided that any person becoming a director of the Company subsequent to October 1, 2002 whose election was approved by at least a majority of the directors then comprising the Incumbent Board shall, for purposes of this Agreement, be considered a member of the Incumbent Board; (iii) The stockholders of the Company approve a merger or consolidation of the Company with any other corporation or other entity, 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 60% 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 than 50% of the combined voting power of the Company's then outstanding securities; or (iv) The stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. (c) Severance Payment. In the event within 24 months after a Change in Control the Executive's employment is terminated by the Bank without cause (pursuant to Section 6(d)) or by the Executive for Good Reason (pursuant to Section 6(e)), then in lieu of the benefits provided in Sections 7(d) and 7(e) above the Executive shall be entitled to the following benefits, subject to signing by Executive of a general release of claims (other than claims for the right to receive the payments or benefits set forth in this Section 8) in a form and manner satisfactory to the Bank: (i) The Bank shall pay to the Executive an amount equal to three times the "base amount" (as such term is defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code")) applicable to the Executive, payable in one lump-sum cash payment no later than 30 days following the Date of Termination (as such term is defined in Section 6(f)); and (ii) All unvested stock options and other stock based awards granted to Executive shall immediately vest and become exercisable by the Executive. Each such stock option, may be exercised by Executive within 180 days after the Date of Termination (iii) In addition to any other benefits to which the Executive may be entitled in accordance with the Bank's then existing 7 severance policies, the Bank shall, for a period of three years commencing on the Date of Terminations, pay such health insurance premiums as may be necessary to allow Executive and Executive's spouse and dependents to continue to receive health insurance coverage substantially similar to coverage they received immediately prior to the Date of Termination. (d) Additional Limitation. (i) Anything in this Agreement to the contrary notwithstanding, in the event that any compensation, payment or distribution by the Bank to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Severance Payments"), would be subject to the excise tax imposed by Section 4999 of the Code the following provisions shall apply: (A) If the Severance Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Payments which are0 in excess of the Threshold Amount (as defined below), are greater than or equal to the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement. (B) If the Threshold Amount is less than (x) the Severance Payments, but greater than (y) the Severance Payments reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes on the amount of the Severance Payments which are in excess of the Threshold Amount, then the benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the maximum Severance Payments shall not exceed the Threshold Amount. To the extent that there is more than one method of reducing the payments to bring them within the Threshold Amount, Executive shall determine which method shall be followed; provided that if Executive fails to make such determination within 45 days after the Bank has sent Executive written notice of the need for such reduction, the Bank may determine the amount of such reduction in its sole discretion. For the purposes of this Paragraph 8(d)(iv), "Threshold Amount" shall mean three times Executive's "base amount" within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and "Excise Tax" shall mean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. (ii) The determination as to which of the alternative provisions of Paragraph 8(d)(iv)(A) shall apply to Executive shall be made by KPMG LLP or any other nationally recognized accounting firm selected by the Bank (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Bank and Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Bank or Executive. For purposes of determining which of the alternative provisions of 8 Paragraph 8(d)(iv)(A) shall apply, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Bank and Executive. (e) Fees and Expenses. The Bank shall pay to the Executive all reasonable legal and arbitration fees and expenses incurred by Executive in successfully obtaining or enforcing any right or benefit provided in Section 8 of this Agreement. 9. Non-competition and Confidential Information. (a) Non-competition. During the term of Executive's employment with the Bank, and, if Executive's employment with the Bank terminates for any reason at least 90 days prior to a Change in Control, then during the period after such termination of employment equal to the longer of (x) one year following the Date of Termination, and (y) two years following the Date of Termination if the Executive receives payments or benefits pursuant to Sections 7(b), 7(d) or 8(c) hereof, the Executive will not, directly or indirectly, whether as owner, partner, shareholder, consultant, agent, employee, co-venturer or otherwise, or through any person, association or entity, become an employee of or a consultant to, become a Director of or acquire any ownership interest in, or carry on, operate, manage, control, or become involved in any manner with any bank (or any financial institution that engages in consumer banking) that maintains or operates an office or branch in any city or town where the Bank maintains or operates an office or branch as of the Date of Termination, nor will Executive attempt to hire any employee of the Bank, assist (but not including giving references) in such hiring by any other person, association or entity, encourage any such employee to terminate his or her relationship with the Bank, or solicit or encourage any customer of the Bank to terminate or reduce its relationship with the Bank, or to conduct with any other person, association or entity any business or activity which such customer conducts or could conduct with the Bank, whether or not the Bank's relationship with such customer was originally established in whole or in part by the Executive; provided, however, that the foregoing shall not prohibit the Executive from owning up to two percent (2%) of the outstanding stock of a publicly traded company engaged in the banking or financial services industry. (b) Confidential Information. The Executive will not at any time disclose to any other person, association or entity (except as required by applicable law or in connection with the performance of his duties and responsibilities hereunder), or use for his own benefit or gain, any confidential information of the Bank obtained by him incident to his employment with the Bank. The term "confidential information" includes, without limitation, financial information, business plans, business practices, customer lists, prospects and opportunities (such as lending relationships, trust relationships, financial product developments, or possible acquisitions or dispositions of businesses or facilities) which have been implemented, discussed or considered by the Bank but does not include 9 any information which has become part of the public domain by means other than the Executive's non-observance of his obligations hereunder. (c) Relief. The Executive agrees that the Bank shall be entitled to injunctive relief for any breach by him of the covenants contained in Section 9(a) or 9(b). In addition, notwithstanding anything herein or in any option plan or agreement to the contrary, with respect to any stock option granted to the Executive by the Bank on or after the date hereof (the "New Options"), upon any breach by Executive of the covenants contained in Section 9(a) then (i) all New Options shall immediately terminate and be of no further force and effect, and (ii) with respect to any New Options that were exercised during the one year period immediately prior to such breach (A) to the extent Executive owns any shares that he received as a result of such option exercise, then Executive shall sell to the Bank (and the Bank shall purchase from Executive) such shares for an aggregate purchase price equal to the lesser of (x) the aggregate exercise price paid by Executive for such shares, or (y) the fair market value of such shares, and (B) to the extent Executive no longer owns any shares that he received as a result of such option exercise, the Executive shall pay to the Bank an amount of cash equal to the sum of (x) any gain realized upon the exercise of such option, and (y) any gain realized upon the sale or transfer of such shares. (d) Interpretation. In the event that any provision of this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a period of time, too large a geographic area, or too great a range of activities, it shall be interpreted to extend only over the maximum period of time, geographic area, or range of activities as to which it may be enforceable. As used in this Section 9, the term "Bank" means the Bank and its affiliates. 10. Conflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the performance of his obligations hereunder will not breach or be in conflict with any other agreement to which he is a party or is bound, and that he is not now subject to any covenants against competition or similar covenants which would affect the performance of his obligations hereunder. 11. 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. 12. 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 rules of 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. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. 13. Assignment; Successors and Assigns, etc. 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; provided, however, that the Bank may assign its rights under this Agreement without the consent of the Executive in the event the Bank shall hereafter effect a reorganization, consolidate with or merge into 10 any other party, or transfer all or substantially all of its properties or assets to any other party. 14. 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. 15. 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. The provisions of Sections 8(d), 8(e), 9 and 12 shall survive the termination of this Agreement. 16. 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 President. 17. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Executive and by duly authorized representatives of the Bank. 18. 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. 19. Prior Agreements. All agreements that may exist between the Bank and Executive that provide for the payment of any compensation or benefits to Executive shall survive. 11 IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Bank and the Executive, as of the date first above written. MASSBANK By: /s/ Gerard H. Brandi ------------------------------- Gerard H. Brandi Title: President & CEO /s/ Thomas J. Queeney ----------------------------------- Thomas J. Queeney 12 EX-11.1 9 dex111.txt STATEMENT REGARDING COMRUTATION OF PER SHARE EXHIBIT 11 MASSBANK CORP. Earnings Per Share The following is a calculation of earnings per share for the three and nine months ended September 30, 2002 and 2001.
Three Months Ended Nine Months Ended Calculation of Basic September 30, September 30, Earnings Per Share 2002 2001 2002 2001 - -------------------- ----------- ----------- ----------- ----------- Net Income $ 2,210,000 $ 2,632,000 $ 7,562,000 $ 8,065,000 ----------- ----------- ----------- ----------- Average common shares outstanding 4,682,859 4,705,001 4,722,218 4,710,104 Less: Unallocated Employee Stock Ownership Plan (ESOP) shares not committed to be released (13,200) (26,400) (13,200) (26,400) ----------- ----------- ----------- ----------- Weighted average shares outstanding 4,669,659 4,678,601 4,709,018 4,683,704 ----------- ----------- ----------- ----------- Earnings per share (in dollars) $ 0.47 $ 0.56 $ 1.61 $ 1.72 ----------- ----------- ----------- ----------- Three Months Ended Nine Months Ended Calculation of Diluted September 30, September 30, Earnings Per Share 2002 2001 2002 2001 - ---------------------- ----------- ----------- ----------- ----------- Net Income $ 2,210,000 $ 2,632,000 $ 7,562,000 $ 8,065,000 ----------- ----------- ----------- ----------- Average common shares outstanding 4,682,859 4,705,001 4,722,218 4,710,104 Less: Unallocated Employee Stock Ownership Plan (ESOP) shares not committed to be released (13,200) (26,400) (13,200) (26,400) Dilutive stock options 125,534 143,298 129,518 125,290 ----------- ----------- ----------- ----------- Weighted average shares outstanding 4,795,193 4,821,899 4,838,536 4,808,994 ----------- ----------- ----------- ----------- Earnings per share (in dollars) $ 0.46 $ 0.55 $ 1.56 $ 1.68 ----------- ----------- ----------- -----------
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