Exhibit 10.2


 


BROOKLINE
BANK

CHANGE IN CONTROL AGREEMENT


 


This Agreement is made
effective as of the
           day of
                ,
by and between                           
(“Executive”) and Brookline Bank, a federally chartered stock savings bank (the
“Bank”).


 


WHEREAS, Executive is
serving in the position of
                    
for the Bank, a position of substantial responsibility.


 


WHEREAS, the Bank recognizes
the significant contribution Executive has made to the Bank and desires to
protect Executive’s position in the event of a “Change in Control,” as defined
in this Agreement.


 


NOW, THEREFORE, in
consideration of the services of Executive agreeing to serve in the position
set forth above, and upon the other terms and conditions hereinafter provided,
the parties hereto agree as follows:


 


TERM OF AGREEMENT


 


The term of this Agreement
shall be for a period of twelve (12) months from the date set forth above (the
“Effective Date”).  Commencing on the
first anniversary date of this Agreement and continuing on each anniversary
date thereafter, the Bank may extend this Agreement for an additional
twelve (12) months provided such extension is agreed to in writing by the
Bank and Executive.  Notwithstanding any
other provision of this Section 1, this Agreement shall remain in effect
upon the public announcement of an event that, if consummated, would result in
a “Change in Control,” as defined in Section 2(a) hereof, and for a period
of twelve (12) months after the closing or completion of the Change in Control.


 


PAYMENTS TO EXECUTIVE UPON CHANGE
IN CONTROL


(a)           Upon the occurrence of a “Change in Control” (as herein
defined) of the Bank or Brookline Bancorp, Inc. (the “Company”) followed at any
time during the term of this Agreement by (i) the involuntary termination
of Executive’s employment, other than for “Cause,” as defined in
Section 2(c) hereof, or (ii) the voluntary termination of Executive’s
employment during the term of this Agreement following any demotion, loss of
title, office or significant authority, reduction in annual compensation or
benefits, or relocation of Executive’s principal place of employment by more
than 50 miles from its location immediately prior to the Change in Control,
then the provisions of Section 3 shall apply.


 


(b)           A “Change in Control” of the Bank or the Company shall
mean a change in control of a nature that: (i) would be required to be reported
in response to Item 1(a) of the current report on Form 8-K, as in effect on the
date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 (the “Exchange Act”); or (ii) results in a Change in Control of the Bank
or the Company within the meaning of the Home Owners’ Loan Act, as amended, and
applicable rules and regulations promulgated thereunder (collectively the
“HOLA”), as in effect at the time of the Change in Control; or (iii) without
limitation such a Change in Control shall be deemed to have occurred at such
time as (a) any “person” (as the term is used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of Company’s
outstanding securities except for any securities purchased by the Bank’s
employee stock ownership plan or trust; or (b) individuals who constitute the
Board on the date hereof (the “Incumbent Board”) cease for any reason to
constitute at least a majority thereof, provided
that any person becoming a trustee or director subsequent to the date hereof
whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Company’s stockholders was approved by the same Nominating Committee
serving under an Incumbent Board, shall be, for purposes of this clause (b),
considered as though he were a member of the Incumbent Board; or (c) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
assets of the Bank or the Company or similar transaction in which the Bank or
Company is not the surviving institution occurs; or (d) a proxy statement
soliciting proxies from stockholders of the Company, by someone other than the
current management of the Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Company or similar transaction
with one or more corporations as a result of which the outstanding shares of
the class of securities then subject to the plan are to be exchanged for or
converted into cash or property or securities not issued by the Company; or (e)
a tender offer is made for 25% or more of the voting securities of the Company
and the shareholders


 

















 


owning
beneficially or of record 25% or more of the outstanding securities of the
Company have tendered or offered to sell their shares pursuant to such tender
offer and such tendered shares have been accepted by the tender offeror.


 


(c)           Executive shall not have the right to receive termination
benefits pursuant to Section 3 hereof upon Termination for Cause.  The term termination for “Cause” shall mean
termination because of Executive’s intentional failure to perform stated
duties, personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, willful violation of any law, rule,
regulation (other than traffic violations or similar offenses) or final cease
and desist order, or any material breach of any material provision of this
Agreement.  A voluntary resignation pursuant
to Section 2(a) shall not constitute, nor be grounds for termination for
Cause.  In determining incompetence, the
acts or omissions shall be measured against standards generally prevailing in
the savings institution industry. 
Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than three-fourths of the members of the Board at a meeting of the Board
called and held for that purpose (after reasonable notice to Executive and an
opportunity for Executive, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, Executive was guilty
of conduct justifying Termination for Cause and specifying the particulars
thereof in detail.  Executive shall not
have the right to receive compensation or other benefits for any period after
termination for Cause.


 


TERMINATION


(a)           Upon the occurrence of a Change in Control, followed at
any time during the term of this Agreement by the involuntary termination of
Executive’s employment other than a termination for Cause, or the voluntary
termination of Executive’s employment by Executive after the occurrence of an
event set forth in Section 2(a) hereof, the Bank shall be obligated to pay
Executive, or in the event of Executive’s subsequent death, Executive’s
beneficiary or beneficiaries, or Executive’s estate, as the case may be, as
severance pay, a sum equal to one (1) times the average of the three preceding
years’ annual base salary and bonus paid to Executive during such years.  If Executive has been employed by the Bank
for less than one year, then the severance pay shall be a sum equal to twelve
(12) times the average monthly salary paid to Executive during such
period.  Such payment shall not be
reduced in the event Executive obtains other employment following termination
of employment.  At the election
of Executive, which election is to be made on an annual basis during the month
of January, and which election is irrevocable for the year in which made and
upon the occurrence of a Change in Control, any payments shall be made in a
lump sum or paid monthly during the remaining term of this Agreement following
Executive’s termination.  In the event
that no election is made, payment to Executive will be made on a monthly basis
during the remaining term of this Agreement.


 


(b)           Upon the occurrence of a Change in Control of the Bank
followed at any time during the term of this Agreement by Executive’s
involuntary termination of employment (other than for termination for Cause) or
the voluntary termination of Executive’s employment as set forth in Section
2(a) hereof, the Bank shall cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive prior to Executive’s severance.  Such coverage and payments shall cease upon expiration of twelve (12)
months.


 


(c)           Notwithstanding the preceding paragraphs of this Section
3, in no event shall the aggregate payments or benefits to be made or afforded
to Executive under said paragraphs (the “Termination Benefits”) constitute an
“excess parachute payment” under Section 280G of the Code or any successor
thereto, and in order to avoid such a result Termination Benefits will be
reduced, if necessary, to an amount (the “Non-Triggering Amount”), the value of
which is one dollar ($1.00) less than an amount equal to three (3) times
Executive’s “base amount,” as determined in accordance with said Section 280G.
The allocation of the reduction required hereby among Termination Benefits
provided by the preceding paragraphs of this Section 3 shall be determined by
Executive.


 


NOTICE OF TERMINATION


(a)           Any purported termination by the Bank or by Executive
shall be communicated by Notice of Termination to the other party hereto.  For purposes of this Agreement, a “Notice of
Termination” shall mean a written notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive’s employment under the provision so indicated.


 


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(b)           “Date of Termination” shall mean the date specified in the
Notice of Termination (which, in the case of a termination for Cause, shall be
immediate).  Except as set forth below
in paragraph (c), in no event shall the Date of Termination exceed
thirty (30) days from the date Notice of Termination is given.


 


(c)           If, within thirty (30) days after any Notice of
Termination is given, the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the termination, except upon
the occurrence of a Change in Control and voluntary termination by Executive in
which case the date of termination shall be the date specified in the Notice,
the Date of Termination shall be the date on which the dispute is finally determined,
either by mutual written agreement of the parties, by a binding arbitration
award, or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal having
been perfected) and provided further that the Date of Termination shall be
extended by a notice of dispute only if such notice is given in good faith and
the party giving such notice pursues the resolution of such dispute with
reasonable diligence.  Notwithstanding
the pendency of any such dispute, the Bank will continue to pay Executive
his/her full compensation in effect when the notice giving rise to the dispute
was given (including, but not limited to, the base salary) and continue
Executive as a participant in all compensation, benefit and insurance plans in
which Executive was participating when the notice of dispute was given, until
the earlier of one hundred twenty (120) days from the date of the Notice of
Termination or the date upon which the dispute is finally resolved in
accordance with this Agreement.  Amounts
paid under this Section are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement.  Notwithstanding the
foregoing, no compensation or benefits shall be paid to Executive in the event
Executive is terminated for Cause.  In
the event that such termination for Cause is found to have been wrongful or
such dispute is otherwise decided in Executive’s favor, Executive shall be entitled
to receive all compensation and benefits which accrued for up to a period of
twelve (12) months after the termination for Cause.


 


POST-TERMINATION OBLIGATIONS


All payments and benefits to
Executive under this Agreement shall be subject to Executive’s compliance with
this Section 5 during the term of this Agreement and for one (1) full year
after the expiration or termination hereof.


 


Executive shall, upon
reasonable notice, furnish such information and assistance to the Bank as may
reasonably be required by the Bank in connection with any litigation in which
it or any of its subsidiaries or affiliates is, or may become, a party.


 


SOURCE OF PAYMENTS


All payments provided in
this Agreement shall be paid by check from the general funds of the Bank.


 


EFFECT ON PRIOR AGREEMENTS AND
EXISTING BENEFIT PLANS


This Agreement contains the
entire understanding between the parties hereto and supersedes any prior
agreement between the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to Executive of
a kind elsewhere provided.  No provision
of this Agreement shall be interpreted to mean that Executive is subject to
receiving fewer benefits than those available to Executive without reference to
this Agreement.


 


NO CONTRACT OF EMPLOYMENT


This Agreement shall not
create a contract of employment between Executive and the Bank or the Company,
and any payments to Executive under this Agreement shall occur only pursuant to
Section 3(a) hereof following a Change in Control.


 


NO ATTACHMENT


Except as required by law,
no right to receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge, or hypothecation, or to execution, attachment, levy, or similar process
or assignment by operation of law, and any attempt, voluntary or involuntary,
to affect any such action shall be null, void, and of no effect.


 


MODIFICATION AND WAIVER


(a)           This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.


 


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(b)           No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the enforcement of
any provision of this Agreement, except by written instrument of the party
charged with such waiver or estoppel. 
No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only as to the
specific term or condition waived and shall not constitute a waiver of such
term or condition for the future as to any act other than that specifically
waived.


 


SEVERABILITY


If, for any reason, any
provision of this Agreement, or any part of any provision, is held invalid,
such invalidity shall not affect any other provision of this Agreement or any
part of such provision not held so invalid, and each such other provision and
part thereof shall to the full extent consistent with law continue in full
force and effect.


 


HEADINGS FOR REFERENCE ONLY


The headings of sections and
paragraphs herein are included solely for convenience of reference and shall
not control the meaning or interpretation of any of the provisions of this
Agreement.


 


GOVERNING LAW


This Agreement shall be
governed by the laws of the Commonwealth of Massachusetts but only to the
extent not superseded by federal law.


 


ARBITRATION


Any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration, conducted before a panel of three arbitrators (one of whom
shall be selected by the Bank, one by Executive, and a third by mutual
agreement of the Bank and Executive) sitting in a location selected by
Executive within fifty (50) miles from the location of the Bank, in accordance
with the rules of the American Arbitration Association then in effect.  Judgment may be entered on the arbitrator’s
award in any court having jurisdiction; provided, however, that Executive shall
be entitled to seek specific performance of his/her right to be paid until the
Date of Termination during the pendency of any dispute or controversy arising
under or in connection with this Agreement.


 


PAYMENT OF LEGAL FEES


All reasonable legal fees
paid or incurred by Executive pursuant to any dispute or question of
interpretation relating to this Agreement shall be paid or reimbursed by the
Bank provided that the dispute or interpretation has been settled by Executive
and the Bank or resolved in Executive’s favor.


 


SUCCESSORS AND ASSIGNS


This Agreement shall be
binding upon, and inure to the benefit of the Bank and its successors and
assigns.  The Bank shall require any
successor or assignee, whether direct or indirect, by purchase, merger,
consolidation or otherwise, to all or substantially all the business or assets
of the Bank or the Company, expressly and unconditionally to assume and agree
to perform the Bank’s obligations under this Agreement, in the same manner and
to the same extent that the Bank would be required to perform if no such
succession or assignment had taken place.


 


REQUIRED PROVISIONS


(a)           The Bank may terminate Executive’s employment at any
time.  Executive shall not have the
right to receive compensation or other benefits for any period after
termination for “Cause” as defined in Section 2(c) herein above.


 


(b)           If Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank’s affairs by a notice
served under Section 8(e)(3) (12 USC §1818(e)(3)) or 8(g) (12 USC §1818(g)) of
the Federal Deposit Insurance Act, as amended, the Bank’s obligations under
this Agreement shall be suspended as of the date of service, unless stayed by
appropriate proceedings.  If the charges
in the notice are dismissed, the Bank may in its discretion (i) pay Executive
all or part of the compensation withheld while its contract obligations were
suspended, and (ii) reinstate (in whole or in part) any of the obligations
which were suspended.


 


(c)           If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank’s affairs by an order issued under
Section 8(e) (12 USC §1818(e)) or 8(g) (12 USC §1818(g)) of the Federal Deposit
Insurance Act, as amended, all obligations of the Bank under this Agreement
shall terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.


 


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(d)           If the Bank is in default as defined in Section 3(x) (12
USC §1813(x)(1)) of the Federal Deposit Insurance Act, as amended, all
obligations of the Bank under this Agreement shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the
contracting parties.


 


(e)           All obligations of the Bank under this Agreement shall be
terminated, except to the extent determined that continuation of this Agreement
is necessary for the continued operation of the Bank, (i) by the Federal
Deposit Insurance Corporation (“FDIC”), at the time the FDIC enters into an
agreement to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) (12 USC §1823(c)) of the Federal Deposit Insurance
Act, as amended, or (ii) when the Bank is determined by the FDIC to be in an
unsafe or unsound condition.  Any rights
of the parties that have already vested, however, shall not be affected by such
action.


 


IN WITNESS WHEREOF, the Bank
has caused this Agreement to be executed and its seal to be affixed hereunto by
its duly authorized officer, and Executive has signed this Agreement, on the
date first above written.


 


	
  ATTEST:

  	
  BROOKLINE BANK

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Richard Chapman, President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
  EXECUTIVE:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
										



 


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