AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into, effective as of the
3rd day of September, 1997, by and among THE NORWICH SAVINGS
SOCIETY, a Connecticut savings bank with its principal office and
place of business in Norwich, Connecticut ("Bank"), NORWICH
FINANCIAL CORP., a Delaware corporation and holder of all of the
outstanding capital stock of Bank ("NFC" or "Parent"), and Xxxxxx
X. Xxxxxxx, a resident of East Lyme, Connecticut
("Executive").
W I T N E S S E T H :
WHEREAS, Executive has been and continues to be employed by
Bank and NFC in an executive capacity pursuant to an Employment
Agreement between Executive and Bank and NFC dated as of the 1st
day of June, 1995; and
WHEREAS, Bank, NFC and Executive desire to amend and restate
the Employment Agreement on the terms herein set forth; and
WHEREAS, Bank, NFC and Executive are willing to enter into
this Amended and Restated Employment Agreement ("Agreement") on
the terms herein set forth;
NOW, THEREFORE, in consideration of the promises and the
mutual covenants herein contained, the parties hereto, intending
to be legally bound, do hereby mutually covenant and agree as
follows:
1. Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "Cause" shall mean:
(i) Executive's conviction of, or plea of nolo
contendere to, a felony or crime involving moral turpitude;
(ii) Executive's commission of an act of personal
dishonesty or breach of fiduciary duty, whether or not involving
personal profit, in connection with Executive's employment by
Bank or any other organization of public trust;
(iii) Executive's commission of an act which
the Board of Directors of Bank by a vote of at least two-thirds
(2/3) of all of the Directors (excluding Executive) shall
have found to have involved willful misconduct or gross
negligence on the part of Executive, in the conduct of her duties
or public life or which causes material embarrassment to the Bank
or Parent;
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(iv) Habitual absenteeism, chronic alcoholism or
any other form of addiction on the part of Executive which
prevents her from performing the essential functions of her
position with or without reasonable accommodation; or
(v) Entry of any final order of a federal or
state regulatory authority having jurisdiction over Bank or
Parent directing the removal of Executive from office.
(b) "Change-in-Control" shall be deemed to have
occurred with respect to Bank if any "Person," as hereinafter
defined, has acquired control of Bank. A "Person" has control:
(i) if a Distribution Date shall have occurred
within the meaning of the Preferred Stock Rights Plan of Parent
adopted by Parent on November 21, 1989, as amended (the "Rights
Plan"), so long as the Rights Plan is in effect;
(ii) if the Rights Plan is not in effect, ten (10)
days following the public announcement that any Person (other
than Parent), directly or indirectly, or acting through one (1)
or more other Persons, owns, controls or has power to vote twenty
percent (20%) or more of the voting common stock of Bank or of
Parent (excluding for purposes hereof any such stock acquired in
any one (1) or more transactions approved by resolution of a
majority of the Board of Directors of Parent) and one (1) or more
designees of such Person is a member of or is thereafter elected
to the Board of Directors of Bank or Parent;
(iii) if the Rights Plan in not in effect, ten
(10) days following the public announcement of the commencement
of a tender offer or exchange offer that would result in the
Person acquiring twenty percent (20%) or more of the voting
common stock of Bank or Parent;
(iv) if Bank or Parent consummates a merger,
consolidation, sale of substantially all its assets, or
substantially similar reorganization transaction with such
Person, excluding, however, any merger, consolidation, sale of
substantially all its assets, or substantially similar
reorganization transaction in which the Market Value of the
outstanding capital stock of such Person is forty percent (40%)
or less of the Market Value of the outstanding capital stock of
Parent. For purposes hereof, "Market Value" shall mean the
average of the closing price of the capital stock over the last
ten (10) trading days prior to the date of execution of a
definitive agreement for such merger or consolidation multiplied
by the number of shares of such capital stock outstanding on the
date of execution of such definitive agreement;
(v) if during any period of twenty-four (24)
consecutive months, individuals who at the beginning of such
period constitute the Board of Directors of Bank or Parent cease
for any reason to constitute a majority of such Board, unless the
election, or the nomination for election of each new Director was
approved by a vote of at least two-thirds (2/3) of the Directors
then still in office who were Directors at the beginning of such
period; or
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(vi) if the Board of Directors of Bank or Parent,
by vote of a majority of all the Directors (excluding Executive),
adopts a resolution to the effect that a "Change-in-Control" has
occurred for purposes of this Agreement.
(c) "Disability" shall mean the incapacity of
Executive by illness or any other cause as determined under the
long-term disability insurance Plan of Bank in effect at the time
in question, or if no such plan is in effect, then such
incapacity of Executive as prevents Executive from performing the
essential functions of her position with or without reasonable
accommodation for a period in excess of two hundred forty (240)
days (whether or not consecutive), or one hundred eighty (180)
days consecutively, as the case may be, during any twelve (12)
month period.
(d) "Good Reason" shall mean the occurrence of any
action which (i) removes or changes Executive's title or reduces
Executive's job responsibilities or base salary (except pursuant
to a general reduction of not more than ten percent (10%) in
executive base salaries effected throughout the Bank prior to a
Change-in-Control; (ii) results in a significant worsening of
Executive's work conditions; or (iii) moves Executive's place of
employment to a location that increases Executive's commute by
more than thirty (30) miles over the length of Executive's
commute from her place of principal residence at the time the
move is requested; provided that, following a Change-in-Control,
"God Reason" shall mean the good faith determination by Executive
that any such action has occurred.
(e) "Material Breach" by Executive shall mean a
determination, made prior to the occurrence of a Change-in-
Control by vote of at least two-thirds (2/3) of all of the
Directors of Bank (excluding Executive), that Executive shall
have failed to comply in any material respect with her
obligations under this Agreement following written notice to
Executive of the alleged deficiencies thereunder and a fair
opportunity to cure such deficiencies (the existence of which
shall be confirmed by the foregoing required vote). Any
determination in accordance with the preceding sentence shall be
conclusive and binding for all purposes of this Agreement.
(f) "Person" shall mean any individual, corporation,
partnership, company or other entity, and shall include a "group"
as defined in Section 13(d)(3) of the Securities Exchange Act of
1934.
(g) "Potential Change-in-Control" shall be deemed to
have occurred if (i) Bank or Parent enters into a letter of
intent, memorandum of understanding or definitive agreement
providing for, or publicly announces that it is considering, one
(1) or more transactions, the consummation of which would result
in the occurrence of a Change-in-Control; (ii) any Person
publicly announces an intention to take or to consider taking
actions which, if consummated, would constitute a Change-in-
Control; or (iii) the Board of Directors of Bank or Parent adopts
a resolution to the effect that a Potential Change-in-Control has
occurred for purposes of this Agreement.
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2. Employment.
(a) Bank and NFC hereby agree to employ Executive as
Vice President and Secretary of NFC and Senior Vice President of
Bank and Executive accepts said employment and agrees to serve
for the Term of this Agreement in such capacity upon the terms
and conditions hereinafter set forth. Subject to the provisions
of subparagraphs (b) and (d) of this Paragraph 2, and to the
provisions of Paragraph 6 below, "Term" shall mean a continuously
renewing period of two (2) years.
(b) Except as provided in subparagraph (c) below, at
any time during the Term, Bank and NFC may, by written notice to
Executive, advise Executive of their desire to modify or amend
any of the terms or provisions of this Agreement or to delete or
add any terms or provisions. Any such notice ("Notice") shall
describe the proposed modifications in reasonable detail. In the
event a Notice shall be given to Executive, Bank, NFC and
Executive agree to discuss the proposed modification(s) and to
attempt in good faith to reach agreement with respect thereto and
to reduce such agreement to writing in an amendment to be
executed by all the parties ("Amendment"). If a Notice is given
hereunder and an Amendment shall not have been executed on or
before the sixtieth (60th) day following the date on which Notice
is given, then the Term shall thereupon be automatically
converted to a fixed period ending two (2) years after the
expiration of such sixty (60) days.
(c) No Notice given pursuant to subparagraph (b) above
shall be effective if given during the period commencing on the
date a Potential Change-in-Control occurs during the Term and
ending on the earlier of (i) abandonment of the event giving rise
to such Potential Change-in-Control (as determined by the Board
of Directors) and (ii) six (6) months following occurrence of the
Change-in-Control which gave rise to the Potential Change-in-
Control.
(d) Notwithstanding any other provision hereof, if a
Change-in-Control shall occur while this Agreement is in effect,
one (1) year shall automatically be added to the Term on the date
of such Change-in-Control; provided that, once effective, the
foregoing provision shall not be effective again on the
occurrence of any subsequent or successive Change-in-Control.
3. Duties of Employment.
(a) During the Term, Executive will serve as Vice
President and Secretary of NFC and Senior Vice President of Bank,
subject to the terms of this Employment Agreement and the
direction and control of the Boards of Directors and the
President of Bank and NFC. During the Term, Executive will serve
Bank and NFC faithfully, diligently and competently and will
devote full-time to her employment and will hold, in addition to
the offices of Vice President and Secretary of NFC and Senior
Vice President of Bank, such other executive offices of Bank or
NFC, or their respective subsidiaries and affiliates, to which
she may be elected, appointed or assigned by the Boards of
Directors of Bank or NFC from time to time and will discharge
such executive duties in connection therewith. Nothing in this
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Agreement shall preclude Executive, with the prior approval of
the President of Bank and NFC, from devoting reasonable periods
of time required for (i) serving as a director or member of a
committee of any organization involving no conflict of interest
with Bank or NFC, or (ii) engaging in charitable, religious and
community activities, provided, that such directorships,
memberships or activities do not materially interfere with the
performance of her duties hereunder.
(b) In the event that (1) a Potential Change-in-
Control shall occur while Executive is employed by Bank and/or
Parent and (2) the Term shall have expired prior to the earlier
of (x) abandonment of the event giving rise to such Potential
Change-in-Control (as determined by the Board of Directors) and
(y) occurrence of the Change-in-Control which gave rise to the
Potential Change-in-Control, Executive agrees that she will
remain in the employ of Bank and Parent at the request of Bank
and Parent, and in such event Bank and Parent agree to continue
to employ Executive, in the offices then held by her with Bank
and Parent and on the terms of employment then in effect until
the earlier to occur of the following: (i) the event giving rise
to the Potential Change-in-Control shall have been abandoned or
terminated; (ii) a Change-in-Control has occurred; or (iii) the
Board of Directors of Bank shall have determined by vote of at
least two-thirds (2/3) of all the Directors (excluding Executive)
that Executive's obligations under this subparagraph shall cease.
During the period covered by the preceding sentence, Executive
shall render such services as shall be required of her in order
to explore and pursue fully the Potential Change-in-Control in
accordance with directions, policies and determinations from time
to time made by the Board of Directors of Bank or Parent or the
President of Bank and communicated to Executive. During said
period, Executive shall use her reasonable best efforts to
fulfill her responsibilities to Bank in the interests of Bank and
the shareholders of Parent and as reasonably requested of her by
the Board of Directors of Bank or Parent or the President of Bank
for such purposes. The employment of Executive pursuant to the
first sentence of this subparagraph (b) may be terminated,
without breach of this Agreement, either by Bank or Parent for
Cause, Disability or Material Breach, or by Executive for Good
Reason.
4. Compensation. During the Term, Bank shall pay to
Executive as compensation for the services to be rendered by her
hereunder the following:
(a) A base salary at the rate of Ninety-Eight Thousand
Dollars ($98,000) per year, or such larger sum as the Board of
Directors of Bank may from time to time determine in connection
with regular periodic performance reviews pursuant to Bank's
policies and practices. Such compensation shall be payable in
accordance with normal payroll practices of Bank.
(b) In addition, Executive may be entitled to a bonus,
payable in cash or other form of compensation, at the end of each
calendar year during such Term in an amount and form set by the
Board of Directors of Bank. The Board of Directors may establish
one or more individual or corporate goals for each such year, the
achievement of which may be made a condition to the payment of
the foregoing bonus to Executive. Such goals shall be
communicated to Executive and shall be stated to be a condition
to payment of said bonus.
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5. Benefits. During the Term, Executive shall be entitled
to the following benefits:
(a) Comprehensive health insurance and major medical
coverage comparable to such coverage provided for executive
employees of Bank generally in compliance with plans or practices
in effect at Bank.
(b) Participation in Bank's long-term disability
insurance plan and pension plan, in accordance with the terms
thereof, as may be in effect from time to time.
(c) Life insurance on the life of Executive in an
amount not less than three (3) times the base salary of Executive
in accordance with the life insurance plan as may be in effect
from time to time for executives of Bank in the same benefits
classification as Executive, payable to a beneficiary selected by
Executive.
(d) A vacation of at least four (4) weeks per year,
during which Executive's compensation shall be paid in full. The
period of vacation selected each year shall be with the approval
of the President of Bank. Vacation time which is not taken by
Executive in any year may be deferred and taken in the first
quarter of the following year.
(e) Reimbursement of all travel and other reasonable
business expenses incident to the rendering of services by
Executive hereunder subject to the submission of appropriate
vouchers and receipts in accordance with Bank's policy from time
to time in effect.
6. End of Term. The Term shall end upon the occurrence of
any of the following events:
(a) Termination of Executive's employment by Bank or
NFC for "Cause."
(b) The voluntary termination of Executive's
employment by Executive other than for "Good Reason."
(c) The Disability of Executive. If this Agreement is
terminated by reason of the Disability of the Executive, Bank
shall give written notice to that effect to Executive in the
manner provided in Xxxxxxxxx 00 xxxxxx.
(x) The death of Executive.
(e) The retirement of Executive in accordance with the
retirement policy of Bank, including early retirement, generally
applicable to its executives or in accordance with any retirement
arrangement established with the consent of Executive with
respect to him.
(f) Full compliance by Bank with the provisions of
Paragraph 7(f) below, if Executive's employment shall have been
terminated by Bank during the Term for any reason other than
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"Cause," "Disability," or if Executive shall have voluntarily
terminated her employment during the Term for "Good Reason."
(g) The Executive attains the age of sixty-five (65).
7. Payment Upon Termination.
(a) If Executive's employment is terminated by Bank
for "Cause," as defined in Paragraph 1(a), the obligations of
Bank and NFC under this Agreement shall cease and Executive shall
forfeit all right to receive any compensation or other benefits
under this Agreement except only salary and reimbursable expenses
accrued through the date of such termination.
(b) If Executive shall voluntarily terminate her
employment during the Term other than for "Good Reason," as
defined in Paragraph 1(d), the obligations of Bank and NFC under
this Agreement shall cease and Executive shall forfeit all right
to receive any compensation or other benefits under this
Agreement except only salary and reimbursable expenses accrued
through the date of such termination.
(c) If Executive's employment is terminated during the
Term by reason of Disability, then Executive shall receive, in
addition to her disability benefits under the Bank's long-term
disability plan, the difference between such disability benefits
and her then current rate of base salary for six (6) months after
termination of employment.
(d) In the event of the death of Executive during the
Term, then, in addition to and not in substitution for any other
benefits which may be payable by Bank in respect of the death of
Executive, the base salary then payable hereunder shall continue
to be paid at the then current rate for a period of six (6)
months after such death to such beneficiary as shall have been
designated in writing by Executive, or if no effective
designation exists, then to the estate of Executive.
(e) If Executive's employment is terminated by reason of
retirement as specified in Paragraph 6(e), the obligations of
Bank and NFC under this Agreement shall cease and Executive shall
forfeit all right to receive any compensation or other benefits
under this Agreement except only salary and reimbursable expenses
accrued through the date of such retirement.
(f) If Executive's employment is terminated by Bank
during the Term for any reason other than for "Cause," or
"Disability," or if Executive shall voluntarily terminate her
employment during the Term for "Good Reason," Executive shall be
entitled to receive, and Bank shall be obligated to pay and
provide Executive, the following amounts:
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(i) An amount in consideration of the covenants
by Executive set forth in Paragraphs 8 and 9 below to be
determined by an independent certified public accounting firm
retained by Bank to be the reasonable value of said covenants as
of the date of termination of Executive's employment. Said
amount shall be paid in cash in a lump sum in the month next
following Executive's termination of employment and shall be
treated as a supplemental wage payment under applicable Treasury
Regulations subject to federal tax withholding at the flat
percentage rate applicable thereto.
(ii) The base salary of Executive, at the rate
in effect immediately prior to Executive's termination, for the
remainder of the Term in effect under Paragraph 2 of this
Agreement, from which shall be subtracted the amount payable to
Executive pursuant to subparagraph (f)(i) above and the amount,
if any, payable to Executive under any then effective severance
pay plan of Bank, payable in accordance with normal payroll
practices of Bank, or at Bank's option the commuted value
(determined by discounting all payments at a rate equal to the
bond equivalent yield of the latest two-year Treasury Xxxx
auction) of such salary to be paid in cash in a lump sum in the
month next following Executive's termination of employment and to
be treated as a supplemental wage payment under applicable
Treasury Regulations subject to federal tax withholding at the
flat percentage rate applicable thereto; provided that if
Executive's termination is after a Change-in-Control such payment
shall be in the form of a lump sum as aforesaid, but calculated
without any discount as aforesaid.
(iii) An amount equal to the aggregate amounts
that Bank would have contributed on behalf of Executive under
Bank's Thrift Plan, if any such plan shall be in effect, until
the end of the Term (plus estimated earnings thereon) had
Executive continued in the employ of Bank until the end of the
Term and made contributions under said plan at a rate, as a
percentage of salary, equal to the rate at which Executive had
made contributions to said plan in the plan year immediately
preceding Executive's termination.
(iv) Additional retirement benefits equal to the
difference between (A) the annual pension benefits that would
have been payable to Executive under the Retirement Plan of Bank
(the "Plan") and under any supplemental retirement plan or
agreement covering Executive ("Supplemental Plan"), if Executive
had been continued in the employ of Bank until the end of the
Term and had received compensation at least equal to that
specified in Paragraph 4(a) of this Agreement until such time,
and (B) the annual benefits actually payable to Executive under
the Plan and any such Supplemental Plan, the discounted present
value of such additional benefits, as calculated by the
independent actuary for the Plan, to be payable in a lump sum to
Executive within thirty (30) days after the expiration of the
non-competition period specified in Paragraph 9(a) of this
Agreement, provided that Executive shall not have breached said
non-competition provisions.
(v) To the extent that any form of compensation
previously granted to Executive, such as, by way of example only,
restricted stock or performance share awards, shall not be fully
vested or shall require additional service as an employee at the
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time of the termination of Executive's employment, Executive
shall be credited with additional service through the end of the
Term for such purpose.
(vi) During the period of eighteen (18) months
following Executive's termination of employment (or such other
period as shall be prescribed by the then applicable COBRA law)
(the "continuation period"), Executive shall continue to receive
such individual and/or family health benefits coverage as she was
receiving at the time of termination of employment, with Bank and
Executive paying the same portion of the cost of such coverage as
existed at the time of Executive's termination, for so long
during the continuation period as Executive elects to continue
coverage and pays her portion of the costs of coverage.
(vii) To the extent that Bank maintains life
insurance for the benefit of Executive at the time of Executive's
termination of employment, Executive shall have the right to
convert such policy to an individually owned term life policy (to
the extent permitted under the governing contracts) and Bank will
pay an annual amount of up to one hundred fifty percent (150%) of
the amount of the average annual premium paid for such life
insurance on behalf of Executive over the three (3) fiscal years
of Bank preceding termination of employment to continue up to the
same amount of coverage on a term basis for the remainder of
Executive's Term. Executive shall have the right to pay any
additional premium amount to maintain the full amount of
insurance in effect or elect to receive lesser coverage for the
same premium. Executive shall also have the right to decline any
continued insurance coverage, in which event Bank will pay to
Executive in a single sum an amount equal to the discounted
present value of the cost of continued coverage as aforesaid.
(viii) Bank shall not be obligated to continue any
disability or disability income insurance on behalf of Executive
following the date of Executive's termination of
employment. To the extent permitted under any contracts,
programs or policies of such nature in effect at the time of such
termination, Executive may continue at her sole cost and expense
coverage thereunder for a period of up to eighteen (18) months.
(ix) During the balance of the Term, Executive
shall continue to receive such perquisites, other than those
specified in the preceding subparagraphs above, as she was
receiving at the time of termination of employment with, to the
extent applicable, the same cost sharing with Bank as was in
effect immediately prior to Executive's termination of
employment.
(x) If Executive's termination is after a
Change-in-Control, Bank shall reimburse Executive for the amount
of any reasonable legal fees and expenses incurred by Executive
in any successful action (whether or not arbitration or
litigation shall be involved) to obtain or enforce any right or
benefit provided to Executive by Bank hereunder or as confirmed
or acknowledged hereunder.
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8. Confidential Information. Executive understands that
in the course of her employment by Bank and NFC, Executive will
receive or have access to confidential information concerning the
business or purposes of Bank and NFC, and which Bank and NFC
desire to protect. Such confidential information shall be deemed
to include, but not be limited to, Bank's customer lists, loan
lists and information, and employee lists, including, if known,
personnel information and data. Executive agrees that she will
not at any time during the period ending one (1) year after the
later of (a) the end of the Term and (b) the end of the period in
which Executive is entitled to receive any payments or benefits
under this Agreement, reveal to anyone outside Bank or NFC or use
for her own benefit any such information without specific
written authorization by Bank or NFC. Executive further agrees
not to use any such confidential information or trade secrets in
competing with Bank or NFC at any time during or in the one (1)
year period immediately following termination of employment with
Bank and NFC.
9. Covenants by Executive Not to Compete With Bank or NFC.
(a) Upon termination of Executive's employment with
Bank and NFC for any reason, Executive covenants and agrees that
she will not at any time during the period of one (1) year from
and after such termination if such termination shall occur after
or in connection with a Change-in-Control, or two (2) years from
and after any other such termination, directly or indirectly in
any manner or under any circumstances or conditions whatsoever be
or become interested, as an individual, partner, principal,
agent, clerk, employee, stockholder, officer, director, trustee,
or in any other capacity whatsoever, except as a nominal owner of
stock of a public corporation, in any other business in any city
or town where Bank or NFC operates a full service branch office
at the time of Executive's termination that in any way competes
with the business of Bank or NFC as it exists at the time of
Executive's termination, or engage or participate in, directly or
indirectly (whether as an officer, director, employee, partner,
consultant, holder of an equity or debt investment, lender or in
any other manner or capacity), or lend her name (or any part or
variant thereof) to, any business in any city or town where Bank
or NFC operates a full service branch office at the time of
Executive's termination which is, or as a result of the
Executive's engagement or participation would become, competitive
with any aspect of the business of Bank or NFC as it exists at
the time of Executive's termination or solicit any officer,
director, employee or agent of Bank or NFC or any subsidiary or
affiliate of Bank or NFC to become an officer, director, employee
or agent of Executive, her respective affiliates or anyone else;
ownership, in the aggregate, of less than one percent (1%) of the
outstanding shares of capital stock of any corporation with one
or more classes of its capital stock listed on a national
securities exchange or publicly traded in the over-the-counter
market shall not constitute a violation of the foregoing
provision.
(b) Executive hereby acknowledges that her services
are unique and extraordinary, and are not readily replaceable,
and hereby expressly agrees that Bank and NFC, in enforcing the
covenants contained in Paragraphs 8 and 9 herein, in addition to
any other remedies provided for herein or otherwise available at
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law, shall be entitled in any court of equity having jurisdiction
to an injunction restraining her in the event of a breach, actual
or threatened, of the agreements and covenants contained in these
Paragraphs.
(c) The parties hereto believe that the restrictive
covenants of these Paragraphs are reasonable. However, if at any
time it shall be determined by any court of competent
jurisdiction that these Paragraphs or any portion of them as
written, are unenforceable because the restrictions are
unreasonable, the parties hereto agree that such portions as
shall have been determined to be unreasonably restrictive shall
thereupon be deemed so amended as to make such restrictions
reasonable in the determination of such court, and the said
covenants, as so modified, shall be enforceable between the
parties to the same extent as if such amendments had been made
prior to the date of any alleged breach of said covenants.
(d) The provisions of this Paragraph 9 shall not apply
if Bank shall be prohibited under Paragraph 15 below from making
any payments to Executive pursuant to Paragraph 7 above.
10. No Obligation to Mitigate. So long as Executive shall
not be in breach of any provision of Paragraph 8 or 9, Executive
shall have no duty to mitigate damages in the event of a
termination and if she voluntarily obtains other employment
(including self-employment), any compensation or profits received
or accrued, directly or indirectly, from such other employment
shall not reduce or otherwise affect the obligations of Bank to
make payments hereunder.
11. Resignation. In the event that Executive's services
hereunder are terminated under any of the provisions of this
Agreement (except by death), Executive agrees that she will
deliver her written resignation as a Director and/or an officer
of Bank or NFC, or their subsidiaries and affiliates, to the
Board of Directors, such resignation to become effective
immediately or, at the option of the Board of Directors, on a
later date as specified by the Board.
12. Insurance. Bank shall have the right at its own cost
and expense to apply for and to secure in its own name, or
otherwise, life, health or accident insurance or any or all of
them covering Executive, and Executive agrees to submit to the
usual and customary medical examination and otherwise to
cooperate with Bank in connection with the procurement of any
such insurance, and any claims thereunder.
13. Release. As a condition of receiving payments or
benefits provided for in this Agreement, at the request of Bank,
Executive shall execute and deliver for the benefit of Bank
and NFC, and any subsidiary or affiliate of Bank or NFC, a
general release in the form set forth in Attachment A, and such
release shall become effective in accordance with its terms. The
failure or refusal of Executive to sign such a release or the
revocation of such a release shall
cause the termination of any and all obligations of Bank and NFC
to make payments or provide benefits hereunder, and the
forfeiture of the right of Executive to receive any such payments
and benefits. Executive acknowledges that Bank and NFC have
advised her to consult with an attorney prior to signing this
Agreement and that she has had an opportunity to do so.
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14. Section 280G Limit. Notwithstanding any other
provision of this Agreement, in the event that any payment or
benefit received or to be received by Executive, whether payable
pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with Bank, its successors, or any person
affiliated with Bank ("Affiliate") within the meaning of Section
1504 of the Internal Revenue Code of 1986, as amended (the
"Code") (collectively "Total Payments") would, in the
determination of the independent certified public accounting firm
then retained by Bank (the "Tax Advisor"), not be deductible (in
whole or in part) by Bank, an Affiliate or other person making
such payment or providing such benefit as a result of Section
280G of the Code, or any successor to such Section, payments and
benefits pursuant to this Agreement shall be reduced until no
portion of the Total Payments is not deductible as a result of
Section 280G of the Code, or payments and benefits pursuant to
this Agreement are reduced to zero. For purposes of this
limitation, (i) no portion of the Total Payments the receipt of
which Executive, in the determination of the Tax Advisor, shall
have effectively waived prior to the date which is fifteen (15)
days following termination of employment and prior to the earlier
of the date of constructive receipt and the date of payment
thereof shall be taken into account; and (ii) any reduction in
the payments and benefits pursuant to this Paragraph shall be
made from the payments and benefits to be made pursuant to
clauses (i) through (iv) of Paragraph 7(f), in such order as may
be determined by Executive, except to the extent that such
payments and benefits, in the determination of the Tax Advisor,
are reasonable compensation within the meaning of Section 280G of
the Code. The determination of the Tax Advisor as to the
deductibility of the Total Payments shall be completed not later
than forty-five (45) days following Executive's termination of
employment, and such determination shall be communicated in
writing to Bank, with a copy to Executive, within said forty-five
(45) day period. The determination of the Tax Advisor as to the
deductibility of the Total Payments shall be deemed conclusive
and binding of Bank and Executive and shall not be subject to the
arbitration provisions hereof Bank shall pay the fees and other
costs of the Tax Advisor hereunder. In the event that the
independent certified public accounting firm then retained by
Bank is unable or declines to serve as Tax Advisor for
purposes of making the foregoing determination, Bank shall
appoint another accounting firm of national reputation to serve
as Tax Advisor.
15. Regulatory Limitation. Notwithstanding any other
provision of this Agreement, Bank shall not be obligated to make,
and Executive shall have no right to receive, any payment,
benefit or amount under this Agreement which would violate any
law, regulation or regulatory order applicable to Bank or its
parent at the time such payment, benefit or amount is due,
including, without limitation, Section 1828(k)(1) of Title 12 of
the United States Code and any regulation or order thereunder of
the Federal Deposit Insurance Corporation ("Prohibited Payment").
In such event the provisions of Section 18 below shall apply. If
and to the extent Bank shall at a later date be relieved of the
restriction on its ability to make any Prohibited Payment, then
at such time Bank shall promptly make payment of any such amounts
to Executive.
16. Notices. All notices under this Agreement shall be in
writing and shall be deemed effective when delivered in person to
Executive or to the President of Bank and NFC, or if mailed,
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postage prepaid, registered or certified mail, addressed, in the
case of Executive, to her last known address as carried on the
personnel records of Bank, and, in the case of Bank and NFC, to
the corporate headquarters, attention of the President, or to
such other address as the party to be notified may specify by
notice to the other party. Executive hereby agrees to give
Bank and NFC not less than sixty (60) days' advance notice of her
intended resignation or other termination from Bank or NFC,
whether or not at the end of the Term.
17. Successors and Assigns. The rights and obligations of
Bank and NFC under this Agreement shall inure to the benefit of
and shall be binding upon the successors and assigns of Bank and
NFC, including, without limitation, any corporation, individual
or other person or entity which may acquire all or substantially
all of the assets and business of Bank or NFC, or of any division
of Bank for which Executive has primary management
responsibility, or with or into which Bank or NFC may be
consolidated or merged or any surviving corporation in any merger
involving Bank or NFC. All references in this Agreement to Bank
and NFC shall be deemed to include all such successors and
assigns.
18. Arbitration. Any dispute which may arise between the
parties hereto may, if both parties agree, be submitted to
binding arbitration in the City of Hartford in accordance with
the Rules of the American Arbitration Association; provided that
any such dispute shall first be submitted to Bank's Board of
Directors in an effort to resolve such dispute without resort to
arbitration.
19. Severability. If any of the terms or conditions of
this Agreement shall be declared void or unenforceable by any
court or administrative body of competent jurisdiction, such term
or condition shall be deemed severable from the remainder of this
Agreement, and the other terms and conditions of this Agreement
shall continue to be valid and enforceable.
20. Amendment. This Agreement may be modified or amended
only by an instrument in writing executed by the parties hereto.
21. Construction. This Agreement shall supersede and
replace all prior agreements and understandings between the
parties hereto on the subject matter covered hereby. This
Agreement shall be governed and construed under the laws of the
State of Connecticut. Words of the masculine gender mean and
include correlative words of the feminine gender. Paragraph
headings are for convenience only and shall not be considered a
part of the terms and provisions of the Agreement.
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IN WITNESS WHEREOF, Bank and NFC have caused this Agreement
to be executed by a duly authorized officer, and Executive has
hereunto set her hand, this 3rd day of September, 1997.
THE NORWICH SAVINGS SOCIETY AND
NORWICH FINANCIAL CORP.
By /s/Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx, Xx.
Their President
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Executive
ATTACHMENT A
RELEASE
We advise you to consult an attorney before you sign this
Release. You have until the date which is seven (7) days after
the Release is signed and returned to The Norwich Savings Society
(the "Bank") to change your mind and revoke your Release. Your
Release shall not become effective or enforceable until after
that date.
In consideration for the benefits provided under your
Amended and Restated Employment Agreement with the Bank and
Norwich Financial Corp. ("NFC"), and more specifically enumerated
in Exhibit 1 hereto, by your signature below you agree to accept
such benefits and not to make any claims of any kind against the
Bank, its past and present and future parent corporations,
subsidiaries, divisions, subdivisions, affiliates and related
companies or their successors and assigns, including without
limitation NFC, or any and all past, present and future
Directors, officers, fiduciaries or employees of any of the
foregoing (all parties referred to in the foregoing are
hereinafter referred to as the "Releasees") before any agency,
court or other forum, and you agree to release the Releasees from
all claims, known or unknown, arising in any way from any actions
taken by the Releasees up to the date of this Release, including,
without limiting the foregoing, any claim for wrongful discharge
or breach of contract or any claims arising under the Age
Discrimination in Employment Act of 1967, Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act of 1990,
the Employee Retirement Income Security Act of 1974, or any other
federal, state or local statute or regulation and any claim for
attorneys' fees, expenses or costs of litigation, except that
this Release is not intended, and shall not be construed, to
release the Bank from any vested obligations it may have under
its employee pension benefit plans.
THE PRECEDING PARAGRAPH MEANS THAT BY SIGNING THIS
RELEASE YOU WILL HAVE WAIVED ANY RIGHT YOU MAY HAVE TO BRING
A LAWSUIT OR MAKE ANY LEGAL CLAIM AGAINST THE RELEASEES BASED
ON ANY ACTIONS TAKEN BY THE RELEASEES UP TO THE DATE OF THIS
RELEASE.
By signing this Release, you further agree as follows:
1. You have read this Release carefully and fully
understand its terms;
2. You have had at least twenty-one (21) days to consider
the terms of the Release;
3. You have seven (7) days from the date you sign this
Release to revoke it by written notification to the Bank. After
this seven (7) day period, this Release is final and binding and
may not be revoked;
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4. You have been advised to seek legal counsel and have
had an opportunity to do so;
5. You would not otherwise be entitled to the benefits
provided under your Amended and Restated Employment Agreement
with the Bank had you not agreed to waive any right you have to
bring a lawsuit or legal claim against the Releasees; and
6. Your agreement to the terms set forth above is
voluntary.
Name:
Signature: Date:
Received by: Date:
EXHIBIT 1
1.
2.
3.
4.
5.
etc.
NOTE: THIS EXHIBIT IS TO BE COMPLETED AT THE TIME OF
TERMINATION TO REFLECT ALL BENEFITS AND PAYMENTS MADE UNDER
AGREEMENT.
Acknowledged and Agreed:
NORWICH FINANCIAL CORP. AND
THE NORWICH SAVINGS SOCIETY EXECUTIVE
By
Their
