Exhibit 10.13 Employment contract between Acadia Trust, N.A. and Xxxxxx X. Xxxxx
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereafter the "Employment Agreement") is made
as of ________ __, 2001 (the "Closing Date"), by and among Acadia Trust,
National Association, a non-depository National Banking Association organized
under the laws of the United States ("Acadia"), Gouws Capital Management, Inc, a
Maine corporation ("Gouws Capital" and together with Acadia, the "Employers,"
and each an "Employer"), and Xxxxxx X. Xxxxx (the "Employee"). Unless otherwise
defined herein, all capitalized terms herein shall have the meaning set forth in
Section 7 hereof.
W I T N E S S E T H
WHEREAS, pursuant to a Stock Purchase Agreement dated as of May 4, 2001
(the "Purchase Agreement"), by and among Camden National Corporation, a Maine
corporation ("CNC"), the Employers, the stockholders of the Employers identified
therein, CNC will purchase all of the outstanding capital stock of the Employers
as of the Closing (as defined in the Purchase Agreement);
WHEREAS, the Employee is presently the sole stockholder of Gouws Capital
and the principal stockholder of Acadia and, in order to induce CNC to enter
into the Purchase Agreement and to receive the benefits that will accrue to the
Employee in connection with the transactions contemplated thereby, the Employee
desires to enter into this Employment Agreement, including the non-competition
and non-solicitation provisions contained herein;
WHEREAS, it is a condition precedent to the obligation of CNC to
consummate the transactions contemplated by the Purchase Agreement that the
Employee in connection with the Closing enter into and be bound by an employment
agreement with the Employers in the form hereof, supplanting any previous
employment agreement or arrangement that Employee may have had with the
Employers;
WHEREAS, CNC recognizes the importance of the Employee to the Employers
and to the Employer's ability to retain its client relationships after giving
effect to the transactions contemplated by the Purchase Agreement, and CNC
desires that the Employers employ the Employee for the period of employment and
upon and subject to the terms herein provided;
WHEREAS, CNC wishes to be assured in connection with the purchase of the
Employers by CNC under the Purchase Agreement that the Employee will not compete
with the Employers or their Controlled Affiliates during the period of
employment, or solicit any Past Clients, Present Clients or Potential Clients
(as hereinafter defined) and will not, by such competition or solicitation,
damage the Employers' goodwill among its clients and the general public;
WHEREAS, the Employee desires to be employed by the Employers and to
refrain from competing with the Employers or soliciting its former, present or
potential clients for the period of employment and upon and subject to the terms
herein provided; and
WHEREAS, the Employee has been employed by the Employers for
approximately seventeen (17) years, has while so employed contributed to the
acquisition and retention of the Employers' clients, and will continue to seek
to acquire and retain clients and to generate goodwill in the future as an
officer, employee and agent of the Employers.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and the agreements hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto covenant and agree as follows:
Section 1. Term of Employment; Compensation. The Employers agree to
employ the Employee as President and Chief Executive Officer of the Employers
for a period of three (3) years beginning on the Closing Date (the "Base Term"),
and the Employee hereby accepts such employment, unless earlier terminated
pursuant to provisions of Section 4 hereof; provided however, that this
Agreement shall automatically renew for two successive one-year terms (each an
"Option Term," collectively the "Option Terms," and together with the Base Term,
each, a "Term") commencing on the day following the expiration of the Base Term
or prior Option Term, as applicable, unless the Employers or the Employee notify
the other, at least thirty (30) days prior to the expiration of the Term then in
effect, of their or his (as the case may be) desire to terminate this Agreement
upon the expiration of such Term. As consideration for the Employee's
performance hereunder, the Employers will pay the Employee for his services
during the Base Term an annual salary of $200,000, subject to such payroll and
withholding deductions as are required by law (the "Base Term Salary"), and the
Employee shall be eligible to participate in or be covered by any Benefits set
forth in Section 3 hereof. The Employee's compensation for his services during
each Option Term shall be determined by negotiation between the Employers and
the Employee prior to the commencement of such Option Term. The Employee's
compensation is subject to further increase as significant changes in
responsibilities occur, or as the Employee's performance may warrant, at the
Employers' discretion.
Section 2. Office and Duties. During the Term of this Employment
Agreement, the Employee shall hold such positions and perform such duties
relating to the Employers' businesses and operations as may from time to time be
assigned to him by the Employers' Boards of Directors consistent with Section 1
hereof. During the Term of this Employment Agreement and while employed by the
Employers, the Employee shall devote substantially all of his full working time
to his duties hereunder and shall, to the best of his ability, perform such
duties in a manner which will further the business and interests of the
Employers. The Employers shall be responsible for determining a reasonable
allocation of the Employee's time and duties between the Employers. The Employee
agrees that he will travel to whatever extent is reasonably necessary in the
conduct of the Employers' business; provided, however, that the principal
offices at which the Employee's duties are to be performed shall not be more
than twenty-five (25) miles from Portland, Maine.
Section 3. Benefits. During the Term of this Employment Agreement,
the Employee shall be eligible to participate in or be covered by any profit
sharing, life insurance, health insurance, accident insurance, disability
insurance, retirement benefit, sick leave and other employee plans from time to
time that are effective generally for executive officers of the Employers or CNC
(the "Benefits"), provided that the Employers will not be required to establish
any such program or plan and further provided that nothing herein shall limit
the right of Employers or CNC to modify, terminate or add such programs.
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Section 4. Termination of Employment. Notwithstanding any other
provision of this Employment Agreement, the Employee's employment with the
Employers shall be terminated only in the following circumstances:
(a) Termination for Cause. The Employee's employment under
this Employment Agreement may be terminated for cause without further liability
on the part of the Employers effective immediately upon a vote of the Employers'
Boards of Directors or CNC's Board of Directors and written notice to the
Employee setting forth in reasonable detail the nature of the cause. Only the
following shall constitute "cause" for such termination:
(i) intentional misrepresentation or intentional
dishonesty of the Employee with respect to the affairs of the Employers or CNC
or any affiliate or employee of the Employers or CNC;
(ii) the commission by or indictment of the Employee
for (A) a felony, (B) any criminal offense which involves a violation of federal
or state banking or securities laws or regulations (or equivalent laws or
regulations of any country or political subdivision thereof) or (C) any
misdemeanor involving moral turpitude, deceit, dishonesty or fraud
("indictment," for these purposes, means an indictment, probable cause hearing
or any other procedure pursuant to which an initial determination of probable or
reasonable cause with respect to such offense is made);
(iii) failure to perform in a manner consistent with
the Employee's past performance a substantial portion of the Employee's duties
and responsibilities assigned or delegated under this Employment Agreement,
which failure continues after not less than sixty (60) days' written notice of
such failure given to the Employee by either Employer's Board of Directors or
CNC's Board of Directors;
(iv) repeated negligence or material failure to
comply with the written policies of the Employers or the directives of either
Employer's Board of Directors; or
(v) any (A) engagement by the Employee in a
Prohibited Competition Activity or (B) other material breach by the Employee of
any of the Employee's obligations under this Employment Agreement, which breach
continues, in the reasonable judgment of the Employers' Boards of Directors or
CNC's Board of Directors, after not less than thirty (30) days' written notice
of such breach given to the Employee by the Boards of Directors.
(b) Termination by the Employee. The Employee's employment
under this Employment Agreement may be terminated by the Employee by written
notice to the Employers' Boards of Directors at least thirty (30) days prior to
such termination.
(c) Termination by the Employers Without Cause. Subject to
the payment of Termination Benefits pursuant to Section 4(d), the Employee's
employment under this Employment Agreement may be terminated by the Employers
without cause upon written notice to the Employee by a vote of the Employers'
Boards of Directors or CNC's Board of Directors.
(d) Certain Termination Benefits. Unless otherwise
specifically provided in this Agreement or otherwise required by law, all
compensation and benefits payable to the Employee under this Agreement shall
terminate on the date of termination of the Employee's employment under this
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Agreement. Notwithstanding the foregoing, in the event of termination during the
Base Period of the Employee's employment with the Employers pursuant to Section
4(c) hereof, the Employers shall provide to the Employee, as severance,
liquidated and any other damages combined, termination benefits (the
"Termination Benefits") consisting of (i) continued payment of the Base Term
Salary in accordance with the Employers' payroll practices for senior executives
as from time to time in effect, and (ii) continuation of the Benefits, except
profit sharing, including group health plan benefits to the extent authorized by
and consistent with 29 U.S.C. Section 1161 et seq. (commonly known as "COBRA"),
with the cost of the regular premium for such benefits shared in the same
relative proportion by the Employers and the Employee as in effect on the date
of termination. The Termination Benefits set forth in (i) and (ii) of this
Section 4(d) shall continue effective until the earlier of twenty-four (24)
months after the date of termination or the expiration of the Base Term.
Notwithstanding the foregoing, nothing in this Section 4(d) shall be construed
to affect the Employee's right to receive COBRA continuation entirely at the
Employee's own cost to the extent that the Employee may continue to be entitled
to COBRA continuation after the Employee's right to cost sharing under this
Section 4(d) ceases.
(e) Disability. If the Employee shall be disabled so as to
be unable to perform the essential functions of the Employee's then existing
position or positions under this Employment Agreement with or without reasonable
accommodation for a period or periods aggregating at least four months during
any consecutive twelve-month period, the Employers' Boards of Directors may
remove the Employee from any responsibilities and/or reassign the Employee to
another position with the Employers for the remainder of the Term or during the
period of such disability. Notwithstanding any such removal or reassignment, the
Employee shall continue to receive the Employee's full salary (less any
disability pay or sick pay benefits to which the Employee may be entitled under
the Employers' policies) and benefits (except to the extent that the Employee
may be ineligible for one or more such benefits under applicable plan terms) for
a period of time equal to the lesser of (i) six (6) months; or (ii) the
remainder of the Term. If any question shall arise as to whether during any
period the Employee is disabled so as to be unable to perform the essential
functions of the Employee's then existing position or positions with or without
reasonable accommodation, the Employee may, and at the request of the Employers
shall, submit to the Employers a certification in reasonable detail by a
physician selected by the Employers to whom the Employee or the Employee's
guardian has no reasonable objection as to whether the Employee is so disabled
or how long such disability is expected to continue, and such certification
shall for the purposes of this Employment Agreement be conclusive of the issue.
The Employee shall cooperate with any reasonable request of the physician in
connection with such certification. If such question shall arise and the
Employee shall fail to submit such certification, the Employers' determination
of such issue shall be binding on the Employee. Nothing in this Section 4(e)
shall be construed to waive the Employee's rights, if any, under existing law
including, without limitation, the Family and Medical Leave Act of 1993, 29
U.S.C. Section 2601 et seq. and the Americans with Disabilities Act, 42 U.S.C.
Section 12101 et seq.
(f) Death. Upon the death of the Employee, this Employment
Agreement will automatically terminate, and the only obligation the Employers
will have under this Employment Agreement will be to pay Employee's personal
representative, administrator or executor the Employee's unpaid base salary
through the date of the Employee's death.
Section 5. All Businesses to be the Property of the Employers;
Assignment of Intellectual Property; Confidentiality.
(a) The Employee agrees that any and all presently existing
trust or investment advisory businesses of the Employers and their Affiliates
and all businesses developed by the Employers
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and their Affiliates, including by such Employee or any other employee of the
Employers, including, without limitation, all proprietary and confidential
investment methodologies, investment advisory contracts, trust management
contracts, fees and fee schedules, commissions, records, data, client lists,
agreements, trade secrets, and other proprietary and confidential incidents of
any business developed by the Employers or their Affiliates or earned or carried
on by the Employee for the Employers or their Affiliates, and all trade names,
service marks and logos under which the Employers or their Affiliates do
business, and any combinations or variations thereof and all related logos, are
and shall be the exclusive property of the Employers or such Affiliate, as
applicable, for its or their sole use. In addition, the Employee acknowledges
and agrees that the investment performance of the accounts managed by the
Employers was attributable to the efforts of the team of professionals of the
Employers and not to the efforts of any single individual or subset of such team
of professionals, and that therefore, the performance records of the accounts
managed by the Employers are and shall be the exclusive property of the
Employers.
(b) The Employee acknowledges that, in the course of
performing services hereunder and otherwise, the Employee has had, and will from
time to time have, access to information of a confidential and proprietary
nature, including without limitation, all confidential and proprietary
investment methodologies, trade secrets, proprietary and confidential plans,
client identities and information, client lists, service providers, business
operations or techniques, records and data ("Intellectual Property") owned or
used in the course of business by the Employers or their Controlled Affiliates.
The Employee agrees always to keep secret and not ever publish, divulge,
furnish, use or make accessible to anyone (otherwise than in the regular
business of the Employers) any Intellectual Property of the Employers or any
Controlled Affiliate thereof unless such information can be shown to be in the
public domain through no fault of such Employee or such disclosure or use shall
have been authorized by the Employers. At the termination of the Employee's
services to the Employers, all data, memoranda, client lists, notes, programs
and other papers, items and tangible media, and reproductions thereof relating
to the foregoing matters in the Employee's possession or control shall be
returned to the Employers and remain in their possession.
(c) The Employee acknowledges that in the course of the
operation of the Employers, the Employee will from time to time have, access to
Intellectual Property owned by or used in the course of business by CNC
(including, for all purposes of this Section 5(c), Affiliates of CNC). The
Employee agrees for the benefit of the Employers and CNC always to keep secret
and not ever publish, divulge, furnish, use or make accessible to anyone (other
than at the request of the Employers or CNC) any knowledge or information
regarding Intellectual Property of CNC and its Affiliates unless such
information can be shown to be in the public domain through no fault of the
Employee or such disclosure or use shall have been authorized by CNC. At the
termination of the Employee's service to the Employers, all data, memoranda,
documents, notes and other papers, items and tangible media, and reproductions
thereof relating to the foregoing matters in the Employee's possession or
control shall be returned to CNC and remain in its possession.
(d) The Employee agrees (on behalf of himself and parties
under his control) not to make any communication to any third party (including,
by way of example and not of limitation, any Client (including Potential
Clients) or any employee of the Employers, CNC, or any of their Affiliates)
which would, or is reasonably likely to, disparage, create a negative impression
of, or in any way be harmful to the business or business reputation of the
Employers, CNC or any of their Affiliates or its respective successors and
assigns, and the then current and former officers, directors, partners, members
and employees of each of the foregoing; provided, however, this Section 5(d)
shall not apply to the extent
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such communications are required by law or occur within the confines of an
arbitration proceeding. The Employers agree to direct their officers and
directors not to make any communication to any third party (including, by way of
example and not of limitation, any Client (including Potential Clients) or any
employee of the Employers, CNC, or any of their Affiliates) which would, or is
reasonably likely to, disparage, create a negative impression of, or in any way
be harmful to the business reputation of the Employee.
(e) The provisions of this Section 5 shall not be deemed to
limit any of the rights of the Employers or CNC under applicable law, but shall
be in addition to the rights which arise under applicable law.
Section 6. Non-Competition Covenant.
(a) Until the later of (i) two (2) years following the
termination of the Employee's employment with the Employers and their
Affiliates, or (ii) five (5) years from the Closing Date, the Employee shall not
directly or indirectly engage in any Prohibited Competition Activity.
(b) In addition to, and not in limitation of, the provisions
of Section 6(a) hereof, the Employee agrees, for the benefit of the Employers
and CNC, that from and after the termination of his employment with the
Employers and until the later of (i) two (2) years following the termination of
the Employee's employment with the Employers or any of their Affiliates, or (ii)
five (5) years from the Closing Date, the Employee shall not, without the
express written consent of the Employers and CNC, directly or indirectly,
whether as owner, part-owner, shareholder, member, partner, director, officer,
trustee, employee, agent or consultant, or in any other capacity, on behalf of
himself or any firm, corporation or other business organization other than the
Employers and their Controlled Affiliates:
(i) provide Services to:
(A) any Person that is a Client (as defined
herein, which includes Past Clients, Present Clients and
Potential Clients) for whom the Employee provided,
directly or indirectly, in whole or in part, Services
for the Employers, or whom the Employee solicited or
otherwise had contact with through or on behalf of the
Employers; or
(B) any other Person that is a Client (which
includes Past Clients, Present Clients and Potential
Clients);
provided, however, that this clause (i) shall not be applicable to Clients
(including Potential Clients) who are also members of the Immediate Family of
the Employee or trusts or other estate planning vehicles, the primary
beneficiaries of which are members of the Immediate Family;
(ii) solicit or induce any Person for the purpose
(which need not be the sole or primary purpose) of (A) causing any accounts or
funds with respect to which the Employers provides Services to be withdrawn from
such management, or (B) causing any Client (including any Potential Client) not
to engage the Employers or any of their Affiliates to provide Services for any
or additional funds or accounts;
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(iii) contact or communicate with, in either case in
connection with Services, whether directly or indirectly, any Past Clients,
Present Clients, or Potential Clients; provided, however, that this clause (iii)
shall not be applicable to Clients (including Potential Clients) who are also
members of the Immediate Family of the Employee; or
(iv) solicit or induce, or attempt to solicit or
induce, directly or indirectly, any employee or agent of, or consultant to, the
Employers or any of their Controlled Affiliates to terminate its, his or her
relationship therewith, hire any such employee, agent or consultant, or former
employee, agent or consultant, or work in any enterprise involving trust or
investment advisory services with any employee, agent or consultant or former
employee, agent or consultant, of the Employers or their Affiliates who was
employed by or acted as an agent or consultant to the Employers or their
Affiliates at any time during the two (2) year period preceding the termination
of the Employee's employment (excluding for all purposes of this sentence,
secretaries and persons holding other similar positions)
For purposes of this Section 6(c), (x) the term "Past Client" shall be limited
to those past Clients who were advisees, investment advisory customers or trust
clients of, or recipients of Services, directly or indirectly, from, the
Employers and their Affiliates at the date of termination of the Employee's
employment or at any time during the two (2) years immediately preceding the
date of such termination; and (y) the term "Potential Client" shall be limited
to those Persons to whom an offer was made within two (2) years prior to the
date of termination of the Employee's employment.
Notwithstanding the provisions of Sections 6(a) and 6(b) hereof, the Employee
may make passive investments in an enterprise which is competitive with the
Employers or CNC, the shares or other equity interests of which are publicly
traded, provided his holding therein together with any holdings of his
Affiliates and members of his Immediate Family, are less than two percent (2%)
of the outstanding shares or comparable interests in such entity.
(c) The Employee and the Employers agree that the periods of
time and the unlimited geographic area applicable to the covenants of this
Section 6 are reasonable, in view of the consideration to be received, directly
or indirectly, by the Employee under the Purchase Agreement, the Employee's
receipt of the payments specified in Section 1 above, the geographic scope and
nature of the business in which the Employers is engaged, the Employee's
knowledge of the Employers' businesses and the Employee's relationships with the
Employers' clients. However, if such period or such area should be adjudged
unreasonable in any judicial proceeding, then the period of time shall be
reduced by such number of months or such area shall be reduced by elimination of
such portion of such area, or both, as are deemed unreasonable, so that this
covenant may be enforced in such maximum area and during such maximum period of
time as are adjudged to be reasonable.
Section 7. Definitions
(a) The term "Affiliate" when used herein shall mean, with
respect to any person or entity (herein the "first party"), any other person or
entity that directly or indirectly controls, or is controlled by, or is under
common control with, such first party. The term "control" as used herein
(including the terms "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to (a) vote twenty-five percent
(25%) or more of the outstanding voting securities of such person or entity, or
(b) otherwise direct the management or policies of such person or entity by
contract or otherwise.
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(b) The term "Controlled Affiliate" when used herein shall
mean, with respect to a Person (as hereinafter defined), any Affiliate of such
Person under its "control," as the term "control" is defined in this Section
7(a).
(c) The term "Immediate Family" when used herein shall mean,
with respect to any person, such person's spouse, parents, grandparents,
children, grandchildren and siblings.
(d) The term "Investment Management Services" when used
herein shall mean any services which involve (a) the giving of advice with
respect to the investment and/or reinvestment of assets or funds (or any group
of assets or funds), or (b) the management of an investment account or fund (or
portions thereof or any group of investment accounts or funds); provided,
however, that services which would otherwise fall under this definition but
which (i) are not performed for remuneration and (ii) (x) are approved in
advance by Employers or CNC or (y) are provided for the Immediate Family or
trusts or similar estate planning vehicles, the primary beneficiaries of which
are members of the Immediate Family, shall be deemed not to fall under this
definition.
(e) The term "Client" or "Client List" when used herein
shall include all Past Clients, Present Clients, and Potential Clients, subject
to the following general rules: (i) with respect to each Client, the term shall
also include any persons or entities which are known to the Employee to be
Affiliates of such Client or persons who are members of the immediate family of
such Client or any of its Affiliates; (ii) with respect to any collective
investment vehicle other than an investment company registered under the 1940
Act or any employee benefit plan, the term shall also include any investor or
participant in such client; and (iii) with respect to so-called "wrap programs,"
both the sponsor of the program and the underlying participants in the program
(or clients who select or selected the Employers, or any of their Controlled
Affiliate under their contract with the sponsor) shall be included as Clients.
(f) The term "Past Client" when used herein shall mean at
any particular time, any Person who at any time within two years prior to such
time had been an advisee or investment advisory customer or trust client of, or
recipient of Services from, the Employers or a Controlled Affiliate of the
Employers but at such time is not an advisee, investment advisory customer or
trust client of, or recipient of Services from the Employers or a Controlled
Affiliate of the Employers.
(g) The term "Person" when used herein shall mean any
individual, partnership (limited or general), corporation, limited liability
company, limited liability partnership, association, trust, joint venture,
unincorporated organization or any similar entity.
(h) The term "Potential Client" when used herein shall mean,
at any particular time, any Person to whom the Employers or any of its
Controlled Affiliates, through any of their officers, employees, agents or
consultants (or persons acting in any similar capacity), has, within two years
prior to such time, offered (whether by means of a personal meeting, telephone
call, letter, other written proposal or other means specifically directed to a
particular person) to serve as trustee or investment adviser or otherwise
provide Services, including, without limitation, any intermediaries between the
Employers and any of its Controlled Affiliates and any such Person, but who is
not at such time an advisee, investment advisory customer or trust client of, or
recipient of Services from, the Employers or any of its Controlled Affiliates or
an intermediary between the Employers or any of its Controlled Affiliates and
any such Person. The preceding sentence is meant to exclude blanket mailings and
advertising, if any, through mass media in which the offer, if any, is available
to the general public, such as magazines, newspapers
8
and sponsorships of public events, in each case to the extent such efforts do
not result in a request by the recipient for further information or a
presentation.
(i) The term "Present Client" when used herein shall mean,
at any particular time, any Person who is at such time (i) an advisee,
investment advisory customer or trust client of, or recipient of Services from,
the Employers or any of its Controlled Affiliates or (ii) an intermediary
between the Employers or any of its Controlled Affiliates and any such Person.
(j) The term "Prohibited Competition Activity" when used
herein shall mean any of the following activities which have not been consented
to in writing in advance by the Employers and CNC (it being understood that
neither the Employers nor CNC shall have any obligation to consent):
(i) directly or indirectly, whether as owner, part
owner, member, partner, director, officer, trustee, employee, agent or
consultant for or on behalf of any Person other than the Employers or any
Affiliate of the Employers: (i) diverting or taking away any funds, investment
accounts or trust accounts with respect to which the Employers or any Controlled
Affiliate of the Employers is performing Services; or (ii) soliciting any Person
for the purpose of diverting or taking away any such funds, investment accounts
or trust accounts; or
(ii) directly or indirectly, whether as owner, part
owner, partner, member director, officer, trustee, employee, agent or
consultant, for or on behalf of any Person other than the Employers or any
Controlled Affiliate of the Employers or CNC, performing any Services;
except to the extent (A) such activities occur after the termination of the
Employee's employment with the Employers, (B) such activities occur while the
Employee is no longer a resident of the State of Maine (the Employee shall not
be deemed to be a resident of the State of Maine if the Employee does not reside
within the State of Maine for more than twelve (12) weeks in any calendar year),
(C) so long as such activities do not take place in the States of Maine, New
Hampshire or Vermont, and (D) so long as such activities do not include
providing Services to customers or clients residing, living or conducting
operations in the States of Maine, New Hampshire or Vermont.
(k) The term "Services" when used herein shall mean the
Investment Management Services or the Trust Services or both.
(l) The term "Trust Services" when used herein shall mean
any services which involve the providing of personal trust, pension trust and
custodial services provided, however, that services which would otherwise fall
under this definition but which are provided for the Immediate Family or trusts
or similar estate planning vehicles, the primary beneficiaries of which are
members of the Immediate Family, shall be deemed not to fall under this
definition.
Section 8. Notices. All notices hereunder shall be in writing and
shall be delivered, sent by recognized overnight courier or facsimile, or mailed
by registered or certified mail, postage and fees prepaid, to the party to be
notified at the party's address shown below. Notices which are hand delivered or
delivered by recognized overnight courier or facsimile shall be effective on
delivery. Notices which are mailed shall be effective on the third day after
mailing.
If to the Employers:
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Acadia Trust, National Association
c/o Acadia Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Board of Directors
Gouws Capital Managements, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Board of Directors
with a copy to:
Camden National Corporation
0 Xxx Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxx
Xxxxxxx Procter LLP
Exchange Place
Boston, MA 02109-2881
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Sturdy, Esq.
If to the Employee:
[Address]
[Facsimile: __________________]
[Attention: __________________]
unless and until notice of another or different address shall be given as
provided herein.
Section 9. Third Party Beneficiary; Assignability. CNC is an
intended third party beneficiary of the provisions of this Employment Agreement.
This Employment Agreement shall be binding upon and inure to the benefit of the
Employee, the Employers and CNC, and to any person or entity which may succeed
to substantially all of the assets of the Employers and CNC. This Employment
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Agreement may be assigned by the Employers (i) without the consent of the
Employee in connection with any sale or reorganization of the Employers and/or
CNC in which the Employers remain Affiliates of CNC, and (ii) with the consent
of the Employee, which such consent shall not be unreasonably withheld, to any
other third party. This Employment Agreement shall not be assignable by the
Employee.
Section 10. Entire Agreement. This Employment Agreement contains the
entire agreement between the Employers and the Employee with respect to the
subject matter hereof, and supersedes all prior oral and written agreements
between the Employers and the Employee with respect to the subject matter
hereof, including without limitation any oral agreements relating to
compensation.
Section 11. Remedies Upon Breach. The Employee recognizes and agrees
that the remedy of the Employers and CNC at law for any breach of the provisions
of Sections 5 or 6 hereof would be inadequate and that for any breach of such
provisions by the Employee, the Employers and CNC shall, in addition to such
other remedies as may be available to it at law or in equity or as provided in
this Employment Agreement, be entitled to injunctive relief and to enforce their
respective rights by an action for specific performance to the extent permitted
by law, and to the right of set-off against any amounts due to the Employee by
the Employers. Should the Employee engage in any activities prohibited by this
Employment Agreement, he agrees to pay over to the Employers all compensation
received in connection with such activities. Such payment shall not impair any
other rights or remedies of the Employers and CNC or affect the obligations or
liabilities of the Employee under this Employment Agreement or applicable law.
Except with respect to matters as to which injunctive relief is being sought,
any dispute arising out of or relating to this Employment Agreement that has not
been settled within thirty (30) days by good faith negotiation between the
parties to this Employment Agreement shall be submitted to American Arbitration
Association for final and binding arbitration pursuant to American Arbitration
Association's rules. Any such arbitration shall be conducted in Boston,
Massachusetts. Such proceedings shall be guided by the following agreed upon
procedures:
(i) mandatory exchange of all relevant documents, to
be accomplished within forty-five (45) days of the initiation of the procedure;
(ii) no other discovery;
(iii) hearings before the neutral advisor which shall
consist of a summary presentation by each side of not more than three hours;
such hearings to take place on one or two days at a maximum; and
(b) decision to be rendered not more than ten (10) days
following such hearings.
The prevailing party in any such proceeding shall be entitled to reimbursement
from the non-prevailing party for all of the prevailing party's fees and
expenses relating to such proceeding (including, without limitation, the fees
and expenses of legal counsel to the prevailing party).
Section 12. Consent to Jurisdiction. To the extent that any court
action is permitted consistent with or to enforce Section 11 of this Employment
Agreement, the parties hereby consent to the jurisdiction of the courts of the
State of Maine and the United States District Court for the District of Maine.
Accordingly, with respect to any such court action, the Employee (a) submits to
the personal jurisdiction of such courts; (b) consents to service of process at
the address determined pursuant to the
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provisions of Section 8 hereof; and (c) waives any other requirement (whether
imposed by statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process.
Section 13. Third-Party Agreements and Rights.
(a) The Employee understands that the Employers do not
desire to acquire from him/her any confidential business information that he/she
may have acquired from others. The Employee hereby represents that the Employee
is not bound by the terms of any agreement with any previous employer or other
party which restricts in any way the Employee's use or disclosure of information
or the Employee's engagement in any business. The Employee represents to the
Employers that the Employee's execution of this Employment Agreement, the
Employee's employment with the Employers and the performance of the Employee's
proposed duties for the Employers will not violate any obligations the Employee
may have to any such previous employer or other party. In the Employee's work
for the Employers, the Employee will not disclose or make use of any information
in violation of any agreements with or rights of any such previous employer or
other party, and the Employee will not bring to the premises of the Employers
any copies or other tangible embodiments of non-public information belonging to
or obtained from any such previous employer or other party.
(b) The Employee agrees to provide written notice of the
provisions of Section 6 of this Agreement (and shall provide a copy of such
notice concurrently to the Employers), together with a copy thereof, to any
enterprise for which the Employee acts as an employee following his or her
termination of employment with the Employers prior to acting in such capacity.
Section 14. Litigation and Regulatory Cooperation. During and after
the Employee's employment, the Employee shall cooperate fully with the Employers
in the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Employers or their
Affiliates which relate to events or occurrences that transpired while the
Employee was employed by the Employers (including, without limitation, while
employed by the Employers). Such cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Employee or its Affiliates at mutually convenient times. During and after
the Employee's employment, the Employee also shall cooperate fully with the
Employers and their Affiliates in connection with any investigation or review of
any federal, state or local regulatory authority (including, without limitation,
the Securities and Exchange Commission) as any such investigation or review
relates to events or occurrences that transpired while the Employee was employed
by the Employers (including, without limitation, while employed by the
Employers). The Employers shall reimburse the Employee for any reasonable
out-of-pocket expenses incurred in connection with the Employee's performance of
obligations pursuant to this Section 14.
Section 15. Waivers and Further Agreements. Neither this Employment
Agreement nor any term or condition hereof, including without limitation the
terms and conditions of this Section 15, may be waived or modified in whole or
in part as against the Employers or the Employee, except by written instrument
executed by or on behalf of each of the parties hereto other than the party
seeking such waiver or modification, expressly stating that it is intended to
operate as a waiver or modification of this Employment Agreement or the
applicable term or condition hereof. Each of the parties hereto agrees to
execute all such further instruments and documents and to take all such further
action as the other party may reasonably require in order to effectuate the
terms and purposes of this Employment Agreement.
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Section 16. Amendments; Consents. This Employment Agreement may not
be amended, nor shall any change, modification, consent, or discharge be
effected except by written instrument executed by or on behalf of the party
against whom enforcement of any change, modification, consent or discharge is
sought.
Section 17. Severability. If any provision of this Employment
Agreement shall be held or deemed to be invalid, inoperative or unenforceable in
any jurisdiction or jurisdictions, because of conflicts with any constitution,
statute, rule or public policy or for any other reason, such circumstance shall
not have the effect of rendering the provision in question unenforceable in any
other jurisdiction or in any other case or circumstance or of rendering any
other provisions herein contained unenforceable to the extent that such other
provisions are not themselves actually in conflict with such constitution,
statute or rule of public policy, but this Employment Agreement shall be
reformed and construed in any such jurisdiction or case as if such invalid,
inoperative, or unenforceable provision had never been contained herein and such
provision reformed so that it would be enforceable to the maximum extent
permitted in such jurisdiction or in such case.
Section 18. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
Section 19. Governing Law. This Employment Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Maine which apply to contracts executed and performed solely in the State of
Maine.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as a sealed instrument as of the date first above written.
EMPLOYERS: ACADIA TRUST, NA
By:
------------------------------
Name:
Title:
GOUWS CAPITAL MANAGEMENTS, INC.
By:
------------------------------
Name:
Title:
EMPLOYEE:
----------------------------------
Xxxxxx X. Xxxxx
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