Exhibit 10.1
CONSULTING AND NON-COMPETE AGREEMENT
This Consulting and Non-Compete Agreement (hereinafter the "Agreement")
dated June 1, 2009, is made by and between Xxxx X. Xxxxxxx (hereinafter "Xx.
Xxxxxxx") and Salisbury Bancorp, Inc. (the "Company") and Salisbury Bank and
Trust Company (the "Bank") (collectively, "Salisbury"), in light of the
following circumstances:
WHEREAS, Xx. Xxxxxxx is employed by the Bank as its Chairman and Chief
Executive Officer and serves in such capacity of its parent corporation,
Salisbury Bancorp Inc., and has loyally and capably served the Bank for more
than 35 years and has served the Company since its inception;
WHEREAS, the Bank and Company are deeply appreciative of his many years
of valuable service; and
WHEREAS, to facilitate the smooth transition in the management of
Salisbury and to maximize the retention of the customers and goodwill which Xx.
Xxxxxxx brought to Salisbury over his career of service, Salisbury wishes to
secure Xx. Xxxxxxx'x continued assistance to the Bank and the Company as a
consultant without unreasonably infringing on his retirement plans;
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, Xx. Xxxxxxx and the Bank, each acting of their own free will,
hereby agree as follows:
1. As previously disclosed by the Company, Xx. Xxxxxxx has indicated
that he will retire June 8, 2009 and, upon his retirement, resign any titles he
may hold as an officer or employee of Salisbury effective June 8, 2009. Upon his
retirement, Xx. Xxxxxxx shall be eligible to receive such retirement benefits in
accordance with the provisions of the retirement plans and programs maintained
by the Bank in which he has been participating. Xx. Xxxxxxx shall be entitled to
all vested benefits, including any benefits vested that accrue prior to his
retirement date. As of this date, such vested benefits are summarized on Exhibit
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A to this Agreement.
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2. Xx. Xxxxxxx agrees that from June 9, 2009, through December 31,
2011, Xx. Xxxxxxx will make himself reasonably available at times mutually
agreeable to Xx. Xxxxxxx and Xxxxxxxxx to provide consulting services to
Salisbury as may be reasonably requested by Salisbury in order to facilitate the
smooth transition of management for Salisbury and assist Salisbury in the
resolution of strategic objectives and customer relationships. Xx. Xxxxxxx shall
generally not be required to devote more than twenty (20) hours on average per
month to his duties hereunder. Salisbury will pay Xx. Xxxxxxx for consulting
services rendered during the term of this Agreement. Payments shall be made in
the amount of $7,637.41 on the first day of each month commencing July 1, 2009,
and ending February 1, 2012. During 2009 and 2010, Salisbury will reimburse Xx.
Xxxxxxx for ordinary and necessary expenses incurred in connection with
participation on Salisbury's behalf at the Connecticut Bankers Association and
Connecticut Community Bankers Association Annual Meetings, so long as such
expenses are consistent with Salisbury's policy and do not exceed an aggregate
of $12,000.
3. The Bank agrees to allow Xx. Xxxxxxx and Xxx. Xxxxxxx Xxxxxxx to
remain in its group health insurance plan and to provide them coverage under
such plan at the same percentage of contribution Xx. Xxxxxxx would have paid if
he had remained actively employed, to the extent permitted by the plan. Mr. and
Xxx. Xxxxxxx shall remain eligible for such coverage until Xx. Xxxxxxx reaches
age 65 and, thereafter, for the period, if any, specified by COBRA.
4. With the exception of the benefits described in Exhibit A of this
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Agreement and the payments and benefits described in this Agreement, Xx. Xxxxxxx
expressly acknowledges that he is not entitled to any payments, benefits or
compensation, in any form for any reason, from Salisbury.
5. Xx. Xxxxxxx agrees to execute the Form of Release attached as
Exhibit B to this Agreement.
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6. Xx. Xxxxxxx and Salisbury shall cooperate in the orderly transfer of
Xx. Xxxxxxx'x professional responsibilities, business files and personal
possessions, so that his duties and responsibilities are completed or passed on
to other Salisbury personnel by June 8, 2009. Xx. Xxxxxxx'x retirement shall not
terminate his membership on the Boards of Directors of either the Company or the
Bank, which shall be governed by the respective Bylaws of the Company and the
Bank, and applicable law.
7. Salisbury and Xx. Xxxxxxx expressly acknowledge that they will not
make any claim or demand against the other except as otherwise provided in this
Agreement and each of them hereby waives any rights any of them may now have or
may hereafter have or claim to have, based upon any alleged oral alteration,
amendment, modification or any other alleged change in this Agreement; that the
validity, effect and operation of this Agreement shall be determined by the laws
of the State of Connecticut; and that there is no written or oral understanding
or agreement between them as to the subject matter of this Agreement that is not
recited herein.
8. Except as provided otherwise in this Agreement, if any of the
provisions, terms or clauses of this Agreement are declared illegal,
unenforceable or ineffective in a legal forum or by operation of law, those
provisions, terms and clauses shall be deemed severable, such that all other
provisions, terms and clauses of this Agreement shall remain valid and binding
upon both parties.
9. Xx. Xxxxxxx affirmatively states that he has had an opportunity to
consult with competent counsel before executing this Agreement and the Exhibits
hereto; that he has a full understanding of the contents of this Agreement and
the Exhibits hereto and the effects thereof; that with specific reference to his
release of any and all claims under the Age Discrimination in Employment Act, 29
U.S.C. ss.ss.621 et. seq. he was afforded up to twenty-one (21) days to consider
this Agreement; and that if he signs this Agreement and the Exhibits hereto
prior to the expiration of such twenty-one (21) days, he does so voluntarily and
of his own free will.
10. Should either party commence or prosecute any action or proceeding
contrary to the provisions of this Agreement, such party agrees to indemnify the
other party for all costs, including court costs and reasonable attorneys' fees,
incurred by the other party in the defense of such action or in establishing or
maintaining the application or validity of this Agreement or the provisions
thereof, to the extent allowed by applicable law.
11. This Agreement shall not become effective or enforceable until
seven (7) days following its execution by Xx. Xxxxxxx. Prior to the end of this
seven (7) day period, Xx. Xxxxxxx may revoke his assent to this Agreement by
written notice to Xxxxxxx X. Xxxxxxx, Xx., President of Salisbury.
12. (a) Xx. Xxxxxxx recognizes and agrees that in the course of his
employment with Salisbury, he had been exposed to confidential information
concerning Salisbury including, but not limited to, existing and contemplated
products, trade secrets, formulas, compilations, business and financial methods
or practices, strategic plans, pricing, marketing, merchandising and selling
techniques and information, customer lists, supplier lists and confidential
information relating to policies and/or business strategies (hereinafter
referred to as "Confidential Information"). Xx. Xxxxxxx agrees that all such
Confidential Information is and shall forever remain the sole property of
Salisbury. Xx. Xxxxxxx shall keep all such Confidential Information strictly
confidential, and he shall not disclose to any third party in any manner, either
directly or indirectly, any of such Confidential Information at any time for any
purpose. Further, Xx. Xxxxxxx shall not use, in any manner, either directly or
indirectly, any of such Confidential Information for his own benefit, for the
benefit of any third party, or for any other purpose at any time.
(b) Xx. Xxxxxxx acknowledges and agrees that, for a thirty-two (32)
month consulting period and a period of twelve (12) months thereafter (such
forty-four (44) month period shall be referred to as the "Non-Compete Period")
without the prior written consent of the Bank, Xx. Xxxxxxx may not directly or
indirectly be employed by or provide consulting services of any kind to any
other depository institution (or an affiliate of same) that maintains one or
more offices in Litchfield County, Connecticut, Berkshire County, Massachusetts,
or Dutchess or Columbia Counties, New York (the "Non-Compete Area").
Furthermore, Xx. Xxxxxxx acknowledges and agrees that during the Non-Compete
Period he will not directly or indirectly solicit or recruit any of Salisbury's
employees to leave employment with Salisbury. Xx. Xxxxxxx also acknowledges and
agrees that during the Non-Compete Period, he will not directly or indirectly
solicit or service any client or customer or prospective client or customer of
Salisbury to become a client or customer of any other depository institution
that maintains one or more offices the Non-Compete Area.
(c) Xx. Xxxxxxx understands and agrees that violation by him of any
portion of this Section 12 may cause Salisbury to suffer immediate, substantial
and irreparable injury, and will be a sufficient basis to award injunctive
relief and monetary damages to Salisbury without affecting the remainder of this
Agreement.
13. The Change in Control Agreement between Xx. Xxxxxxx and Xxxxxxxxx
shall expire effective June 8, 2009. This Section shall be deemed to be an
amendment pursuant to the provisions of such Change in Control Agreement.
14. No payments or benefits specified in this Agreement shall be
construed to be a payment for departure from a company for any reason or
otherwise constitute prohibited compensation pursuant to Section 111 of the
American Recovery and Reinvestment Act of 2009 (the "Act") or regulations or
standards adopted pursuant thereto, it being the intention of the parties to
facilitate the retirement of Xx. Xxxxxxx as contemplated and publicly announced
prior to the enactment of the Act and to provide for Xx. Xxxxxxx'x continued
service to the Company through this Consulting and Non-Compete Agreement.
IN WITNESS WHEREOF, the aforementioned parties, intending to be legally
bound hereby, have executed this Agreement on the date(s) set forth below.
XXXX X. XXXXXXX
Date: June 1, 2009
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Xxxx X. Xxxxxxx
STATE OF CONNECTICUT:
: ss: June 1, 2009
COUNTY OF LITCHFIELD: ----------------------- ------------
Personally appeared Xxxx X. Xxxxxxx, signer of the foregoing Agreement,
and acknowledged the same to be his free act and deed before me.
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Commissioner of the Superior Court/
Notary Public
SALISBURY BANK AND TRUST COMPANY
Date: June 1, 2009
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By: Xxxxxxx X. Xxxxxxx, Xx.
Its: President
STATE OF CONNECTICUT:
: ss: June 1, 2009
COUNTY OF LITCHFIELD: ----------------------- ------------
Personally appeared Xxxxxxx X. Xxxxxxx, Xx., President of Salisbury
Bank and Trust Company, signer of the foregoing Agreement, and acknowledged the
same to be his free act and deed on behalf of himself and Salisbury Bank and
Trust Company.
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Commissioner of the Superior Court/
Notary Public
SALISBURY BANCORP, INC.
Date: June 1, 2009
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By: Xxxxxxx X. Xxxxxxx, Xx.
Its: President
STATE OF CONNECTICUT:
: ss: June 1, 2009
COUNTY OF LITCHFIELD: ----------------------- ------------
Personally appeared Xxxxxxx X. Xxxxxxx, Xx., President of Salisbury
Bancorp, Inc., signer of the foregoing Agreement, and acknowledged the same to
be his free act and deed on behalf of himself and Salisbury Bancorp, Inc.
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Commissioner of the Superior Court/
Notary Public
EXHIBIT A
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SUMMARY OF BENEFITS
Xx. Xxxxxxx shall be entitled to receive his retirement benefit
pursuant to the Retirement Plans of Salisbury Bank and Trust Company and
Salisbury Bancorp, Inc., including the following benefits summarized below. Such
summaries are subject to and qualified by the terms of the actual Plan
documents:
o Benefits vested as of June 8, 2009 under the Profit Sharing
Plan. No contributions shall be made after such date.
o Benefits vested as of June 8, 2009 under the Defined
Contribution Plan (401k). No contributions shall be made after
such date.
o Benefits vested as of June 8, 2009 under the Defined Benefit
Plan (Pension) to be distributed pursuant to the Pension
distribution options available at that time.
o The Bank agrees to allow Xx. Xxxxxxx and Xxx. Xxxxxxx Xxxxxxx
to remain in its group health insurance plan and to provide
them coverage under such plan at the same percentage of
contribution Xx. Xxxxxxx would have paid if he had remained
actively employed, to the extent permitted by the plan. Mr.
and Xxx. Xxxxxxx shall remain eligible for such coverage until
Xx. Xxxxxxx reaches age 65 and, thereafter, for the period, if
any, specified by COBRA.
o A group term life insurance policy with a death benefit of
$50,000. The premium to be paid by the Bank through Xx.
Xxxxxxx'x 65th birthday.
o Benefits pursuant to the Bank-owned Life Insurance Agreement
pursuant to the Salisbury Bank and Trust Company Group Term
Carve-out Plan with respect to Xx. Xxxxxxx dated June 20,
2003, as amended.
o Benefits vested pursuant to the SERP Agreement dated June 29,
1994.
EXHIBIT B
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RELEASE
For and in consideration of the benefits described in the attached
Consulting and Non-Compete Agreement dated June 1, 2009 to which this Release is
an Exhibit (collectively, the "Agreement"), Xx. Xxxx X. Xxxxxxx, for himself,
and for his heirs, executors, administrators, successors and assigns, knowingly
releases and forever discharges the Bank, its parent corporation, and all of
their past, present and future directors, officers, agents and employees, from
any and all claims, demands, obligations, damages, liabilities and causes of
action, known or unknown, in law or in equity, including but not limited to
claims and causes of action for wrongful discharge, tort, defamation, breach of
any contract whether express or implied, misrepresentation, breach of the duty
of good faith and fair dealing, the negligent or intentional infliction of
emotional distress, and causes of action and claims under the Connecticut
Workers' Compensation Act, Conn. Gen. Stat. xx.xx. 31-275 et. seq., Title VII of
the Civil Rights Act of 1964, 42 U.S.C. ss.ss.2000e et. seq., the Civil Rights
Act of 1991, 42 U.S.C. xx.xx. 1981, et. seq., Section 1983 of the Civil Rights
Act, 42 U.S.C. ss.1983, the Connecticut Discriminatory Practices Act, Conn. Gen.
Stat. ss.ss.46a-58 et. seq., the Americans with Disabilities Act, 42 U.S.C.
ss.ss.12101 et. seq., the Age Discrimination in Employment Act, 29 U.S.C.
ss.ss.621 et. seq., the Employee Retirement Income Security Act, 29 U.S.C.
xx.xx. 1132, et seq., the Family and Medical Leave Act of 1993, 29 U.S.C. xx.xx.
2601 et seq., the Connecticut Family and Medical Leave Act, Conn. Gen. Stat.
xx.xx. 31-51kk, et seq., the Fair Credit Reporting Act, 15 U.S.C. xx.xx. 1681,
et seq., the Connecticut Whistle Blowers' Act, Conn. Gen. Stat. ss.31-51m, the
provisions of the Connecticut General Statutes concerning the payment of wages
(Conn. Gen. Stat. ss.ss.31-58 et seq. and Conn. Gen. Stat. ss.ss.31-70 et seq.),
the Fair Labor Standards Act, 29 U.S.C. ss.ss.201 et seq., and all other
federal, state and local laws, ordinances or regulations, which Xx. Xxxxxxx now
has or ever had from the beginning of the world to the date of these presents
against the Bank or its parent corporation, for any losses, injuries or damages
(including but not limited to back pay, liquidated, compensatory or punitive
damages, attorneys' fees and litigation costs), resulting from and/or arising
out of or in any way connected with Xx. Xxxxxxx'x employment by the Bank or its
parent corporation or his retirement from such employment. This Release does
not, in any way, preclude Xx. Xxxxxxx from enforcing the provisions of the
Agreement, however, in the event that a breach occurs.
IN WITNESS WHEREOF, the aforementioned parties, intending to be legally
bound hereby, have executed this Agreement on the date(s) set forth below.
XXXX X. XXXXXXX
Date: June 1, 2009
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Xxxx X. Xxxxxxx
STATE OF CONNECTICUT:
: ss: June 1, 2009
COUNTY OF LITCHFIELD: ----------------------- ------------
Personally appeared Xxxx X. Xxxxxxx, signer of the foregoing Agreement,
and acknowledged the same to be his free act and deed before me.
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Commissioner of the Superior Court/
Notary Public
SALISBURY BANK AND TRUST COMPANY
Date: June 1, 2009
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By: Xxxxxxx X. Xxxxxxx, Xx.
Its: President
STATE OF CONNECTICUT:
: ss: June 1, 2009
COUNTY OF LITCHFIELD: ----------------------- ------------
Personally appeared Xxxxxxx X. Xxxxxxx, Xx., President of Salisbury
Bank and Trust Company, signer of the foregoing Agreement, and acknowledged the
same to be his free act and deed on behalf of himself and Salisbury Bank and
Trust Company.
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Commissioner of the Superior Court/
Notary Public
SALISBURY BANCORP, INC.
Date: June 1, 2009
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By: Xxxxxxx X. Xxxxxxx, Xx.
Its: President
STATE OF CONNECTICUT:
: ss: June 1, 2009
COUNTY OF LITCHFIELD: ----------------------- ------------
Personally appeared Xxxxxxx X. Xxxxxxx, Xx., President of Salisbury
Bancorp, Inc., signer of the foregoing Agreement, and acknowledged the same to
be his free act and deed on behalf of himself and Salisbury Bancorp, Inc.
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Commissioner of the Superior Court/
Notary Public
