EMPLOYMENT AGREEMENT
Exhibit 10.10
AGREEMENT made and entered into as of the 14th day of June, 2004 by and between Beverly National Bank, a national banking association having its principal place of business at 000 Xxxxx Xxxxxx in Xxxxxxx, Xxxxxxxxxxxxx 00000 (the “Bank”), and Xxxx X. Good, III with a principal residence of 00 Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxxxxxxx 00000 (the “Employee”).
WHEREAS the Bank wishes to employ the Employee as an Executive Vice President of the Bank; and
WHEREAS the Employee desires to be so employed.
4. Non-Competition. At all times during which the Employee is employed by the Bank under this Agreement, the Employee shall not, directly or indirectly, as an employee of any person or entity (whether or not engaged in business for profit), individual proprietor, partner, stockholder, director, officer, joint venturer, investor, lender or in any other capacity whatever (otherwise than as holder of less than ten (10) percent of any securities publicly traded in the market) compete within (i) the Cities of Beverly and Danvers, Massachusetts, or the Towns of Hamilton, Manchester and Topsfield, Massachusetts, or (ii) municipalities contiguous to the Cities of Beverly and Danvers, Massachusetts, the Town of Hamilton, Massachusetts, the Town of Manchester, Massachusetts, and the Town of Topsfield, Massachusetts or (iii) any other Cities or Towns in which the Bank may locate during the term of this Agreement, with the business of the Bank, as such businesses are constituted at any time during the term of this Agreement. If the Employee resigns from his position and terminates this Agreement without cause prior to the expiration of the term of this Agreement; terminates his employment under Section 7(d) for Good Reason; or his employment is terminated under Section 7(e) by the Bank without cause, the Employee agrees that he will not, for a period of one (1) year following his termination of employment, directly or indirectly, solicit any customer of the Bank on behalf of any business entity engaged in the banking or mortgage lending business or encourage any customer of the Bank to terminate or otherwise modify adversely its business relationship with the Bank. In the event that the Employee breaches, or proposes to breach, any of the provisions of this Section 4, the Bank shall be entitled to an injunction or other appropriate equitable relief to restrain any such breach.
(a) The expiration of the term hereof as provided in Section 1 hereof or as from time to time extended;
(b) The Employee’s resignation from the Bank or the death or disability of the Employee;
(c) Upon the election of the Bank, for Cause, as hereinafter defined, after ten (10) business days’ prior written notice to the Employee. For purposes of this Agreement, the Bank shall be deemed to have “Cause” to terminate the employment of the Employee under this Agreement only if:
(i) | The Employee is convicted by a court of competent jurisdiction of any criminal offense involving dishonesty or breach of trust; |
(ii) | The Employee shall commit an act of fraud materially evidencing bad faith toward the Bank, its parent, any of its subsidiaries or any affiliates; |
(iii) | The Employee fails (after demand and an opportunity to correct as set forth below) to substantially perform the duties reasonably assigned to him by the President of the Bank which are normal and customary for an Employee in a similar position in a substantially similar company in Massachusetts (other than any such failure resulting from the Employee’s incapacity due to physical or mental illness). The President shall first make a written demand for substantial performance to Employee. Such demand shall specifically identify the objective and reasonable standards which the President believes that Employee has not substantially performed such duties. |
2
Such demand shall also specify a reasonable time for Employee to demonstrate objectively to the President of the Bank that he has substantially performed the duties reasonably assigned to him. |
(d) At the election of the Employee, for Good Reason, as hereinafter defined, after ten (10) business days written notice of the basis thereof to the Bank if during such period the Bank shall not cure the basis thereof. For the purpose of this Agreement, the Employee shall be deemed to have “Good Reason” to terminate his employment only if the Bank is in material breach of this Agreement or any other written agreement the Bank may have with the Employee.
(e) Upon the election of the Bank, without Cause (as hereinabove defined), after ten (10) business days prior written notice to the Employee.
8. Payments Upon Termination of Employment.
(i) | Within five days after such termination, the Bank shall pay to the Employee (or to his personal representative in case of death), the sum of all accrued and unpaid compensation through the date of such termination, plus a lump sum amount equal to one-twelfth of Employee’s base annual salary as in effect as of the date of such termination times the number of months remaining until the expiration of the term of this Agreement (as provided in Section 1 hereof). |
(ii) | The Bank shall maintain or cause to be maintained in effect for the Employee for a period of twelve months following such termination, at the Bank’s sole expense, all group insurance (including life, health, accident and disability insurance) and all other employee benefit plans, programs or arrangements (other than the Bank’s retirement plan, the Bank’s profit-sharing plan, and the Bank’s employee stock ownership plan), in which the Employee was participating at any time during the twelve (12) months preceding such termination. |
(iii) | The Employee shall not be required to mitigate the amount of any payment provided for in this Section 8(d) by seeking employment or otherwise. |
In the event that the Employee’s participation in any of the foregoing plans, programs or arrangements (including those contemplated by Subsection (d) hereof) is barred by law or otherwise, or in the event that any such plan, program or arrangement is discontinued or the benefits thereunder are materially reduced during such period,
3
the Bank shall provide the Employee with benefits substantially similar to those to which the Employee was entitled immediately prior to the date of his termination of employment. Upon expiration of the period of coverage provided hereunder, the Employee shall be provided with the opportunity to have assigned to him at no cost and with no appointment of prepaid premiums any assignable insurance owned by the Bank or any of its subsidiaries and relating specifically to the Employee.
(a) To the Bank: |
Xxxxxxx National Bank | |
000 Xxxxx Xxxxxx | ||
Xxxxxxx, Xxxxxxxxxxxxx 00000 | ||
Attention: Xxxxx X. Xxxxxxxx, President | ||
(b) To the Employee: |
Xx. Xxxx X. Good, III | |
00 Xxxxxx Xxxxxx | ||
Xxxxx, XX 00000 |
Either party may by notice in writing change the address to which notices to it or him are to be addressed hereunder.
11. Arbitration. Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in Boston, Massachusetts, in accordance with the rules of the American Arbitration Association then in effect. Notwithstanding the pendency of any such dispute or controversy, the Bank will pay the Employee promptly an amount equal to his full compensation in effect when the notice giving rise to the dispute was given (including, but not limited to, base salary) and shall provide or cause to be provided to the Employee all compensation, benefits and insurance plans in which he was participating when the notice giving rise to the dispute was given, until the dispute is finally resolved. Amounts paid under this Section 11 are in addition to all other amounts due under this Agreement and shall not be offset against or reduce any other amounts due under this Agreement. Judgment may be entered on the arbitrator’s award in any court having jurisdiction; provided, however, that the Employee shall be entitled to seek specific performance of his right to be paid as specified in this Section 11.
(a) Effect on Change in Control Agreement. Reference is hereby made to that certain Change in Control Agreement made as of same date herewith by and among Beverly National Corporation and the Employee. The terms of this Agreement are not meant to supercede or conflict in any way with any of the terms of the Change in Control Agreement.
(b) Indemnification. During the period of his employment hereunder, the Bank agrees to indemnify the Employee in his capacity as an officer of the Bank to the maximum extent permitted under the laws of the Commonwealth of Massachusetts and applicable banking rules and regulations. The provisions of this Section 12(a) shall survive expiration or termination of this Agreement for any reason whatsoever.
4
(e) Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the Commonwealth of Massachusetts. Employee agrees that it supersedes in all respects any prior employment agreement between the Bank and the Employee.
(f) Binding Effect; Non-Assignability. This Agreement shall be binding upon the Bank and inure to the benefit of the Bank and its successors. Neither this Agreement nor any rights arising hereunder may be assigned or pledged by the Employee during his lifetime. This Agreement shall inure to the benefit of and be enforceable by the Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
(g) Time is of the Essence. It is expressly understood by the Obligors that time is of the essence in performance of all terms and conditions of this Agreement.
ATTEST | BEVERLY NATIONAL BANK | |||||||
/s/ Xxxxxxx Xxxxxx | By: | /s/ Xxxxx X. Xxxxxxxx | ||||||
Xxxxx X. Xxxxxxxx | ||||||||
President and Chief Executive Officer | ||||||||
WITNESS | XXXX X. GOOD, III | |||||||
/s/ Xxxxxxx Xxxxxx | /s/ Xxxx X. Good, III | |||||||
Xxxx X. Good, III |
5
EXHIBIT A
TO
BY AND BETWEEN
XXXXXXX NATIONAL BANK
AND
XXXX X. GOOD, III
DATED: June 14, 2004
1. | Vacation - The Employee shall be entitled to twenty-five (25) days paid vacation in each calendar year during the term of the Agreement, earned at a rate of 2.083 days per month. A vacation period should not be for more than four weeks or less than two weeks. The Employee shall also be entitled to all paid holidays recognized by the Bank. |
4. | Retirement Plan - The Employee shall be entitled to participate in the Bank’s retirement plan as amended from time to time, commencing on January 1st following one (1) year of employment. |
5. | 401(k) Profit Sharing Plan - The Employee shall be entitled to participate in the Bank’s 401(k) profit sharing plan as amended from time to time, beginning after ninety (90) days of employment, except that there shall be no matching by the Bank until completion of one (1) year of employment. |
6. | Incentive Stock Option Plan - The Employee shall be entitled to participate in the Bank’s parent’s incentive stock options plans in effect from time to time. |
9. | Sick Days - Employee will be entitled to 0.75 paid sick days per each month of employment. |
10. | Bank’s Incentive Plan - The Employee will be entitled to participate in the Bank’s incentive plan in effect from time to time. Targets are determined annually at budget time. |
11. | Incentive Bonus - The Bank shall award Employee, as an initial incentive bonus, an amount not less than Ten Thousand Dollars ($10,000.00) payable in the first calendar quarter of 2005 concurrent with the timing of the payment by the Bank of other executive bonuses, provided that Employee’s employment with the Bank (or any successor) has not been previously terminated as a result of resignation, death, disability or for Cause. |
12. | Change in Control Protection - The protection is set forth in the separate agreement dated as of the date hereof. |
6
TO
Reference is made to the Employment Agreement (the “Agreement”) dated as of June 14, 2004 by and between Beverly National Bank, a national banking association having its principal place of business in Beverly, Massachusetts (therein and hereinafter referred to as the “Bank”) and Xxxx X. Good, III (therein and hereinafter referred to as the “Employee”).
1. | Section 8(d)(i) is amended by deleting the period at the end of the first and only sentence of such Section and by inserting in lieu thereof the following: |
“; provided that if the Employee is then a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended (the “Code”), and the payment is treated as being made on account of separation from service pursuant to Section 409A(a)(2)(A)(i) of the Code, the lump sum amount shall be payable to the Executive pursuant to this Section 8(d)(i) beginning on the first day of the seventh month following on the date of such termination.”
2. | Section 8(d)(ii) is amended by deleting such Section in its entirety and by inserting in lieu thereof the following: |
“The Bank shall maintain or cause to be maintained in effect for the Employee for a period of twelve months following such termination, at the Bank’s sole expense, all medical and dental group insurance in which the Employee was participating at any time during the twelve (12) months preceding such termination, to the extent that such medical and dental insurance coverage continuation constitutes an arrangement excluded from the application of Section 409A of the Code.”
3. | Section 12 is amended by adding the following new subsection (j): |
7
parties expressly agree that the amounts deferred prior to 2005 may be treated as deferred after 2004 for purposes of Section 409A due to such amendment.”
4. | Section 10 of Exhibit A is amended by adding the following sentence after the second and final sentence of such Section: |
“Awards under the Bank’s incentive plan, if applicable, shall be payable within the first 2 1/2 months of the first taxable year following the end of the relevant calendar year in which the amount is no longer subject to a substantial risk of forfeiture under Section 409A of the Code.”
IN WITNESS WHEREOF, the Employee and the Bank have duly executed on this 25th day of January, 2007 and adopted this First Amendment to the Agreement, effective as of January 1, 2005.
XXXXXXX NATIONAL BANK | ||
By: | /s/ Xxxxx X. Xxxxxxxx | |
A Duly Authorized Representative | ||
EMPLOYEE | ||
/s/ Xxxx X. Good, III | ||
Xxxx X. Good, III |
8