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 Xxxxxxx
X. Xxxxx, a resident of Glastonbury, 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 his 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 him from performing the essential functions of his
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 is 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 his 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 his place of principal residence at the time the move
is requested; provided that, following a Change-in-Control, "Good
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 his 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
Executive Vice President, Treasurer and Chief Financial Officer of
Bank and NFC 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 Executive Vice
President, Treasurer and Chief Financial Officer of Bank and NFC,
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 his employment and will hold, in addition to the offices
of Executive Vice President, Treasurer and Chief Financial Officer
of Bank and NFC, such other executive offices of Bank or NFC, or
their respective subsidiaries and affiliates, to which he 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 Agreement shall preclude
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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 his 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 he 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 him 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 him 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 his reasonable best efforts to fulfill
his responsibilities to Bank in the interests of Bank and the
shareholders of Parent and as reasonably requested of him 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 him
hereunder the following:
(a) A base salary at the rate of One Hundred Sixty-
Eight Thousand Seven Hundred Dollars ($168,700) 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.
(f) A late model American automobile as approved by the
Board of Directors of Bank, together with reimbursement for the
ordinary and necessary expenses of said automobile incurred by
Executive in the course of performing his duties for Bank
hereunder.
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.
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(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
"Cause," "Disability," or if Executive shall have voluntarily
terminated his 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 his
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 his disability benefits under the Bank's long-term
disability plan, the difference between such disability benefits
and his 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.
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(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 his
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:
(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 Note 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
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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
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 he 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 his 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 his 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 he 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.
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(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.
8. Confidential Information. Executive understands that in
the course of his 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 he 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
his 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
he will not at any time during the period of two (2) years from
and after 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 his 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, his
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.
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(b) Executive hereby acknowledges that his 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
law, shall be entitled in any court of equity having jurisdiction
to an injunction restraining him 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 die
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 he 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 he will deliver
his 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
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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 him to consult with an attorney prior to
signing this Agreement and that he has had an opportunity to do
so.
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
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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 Secretary of Bank and NFC, or if mailed,
postage prepaid, registered or certified mail, addressed, in the
case of Executive, to his 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 Secretary, 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 his 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 his 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
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
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;
4. You have been advised to seek legal counsel and have had
an opportunity to do so;
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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
