Exhibit 10.1
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of September 30, 1997 (the
"Effective Date"), by and between Xxxxxxxx Financial, Inc., a New Hampshire
chartered corporation ("Xxxxxxxx"), The Berlin City Bank, a New Hampshire
chartered bank and wholly owned subsidiary of Xxxxxxxx with its principal
offices located in Berlin, New Hampshire (Xxxxxxxx and The Berlin City Bank
shall hereinafter collectively be referred to as the "Employer"), and Xxxxxxx X.
Xxxxxxxx (the "Executive"). In consideration of the mutual covenants contained
in this Agreement, the Employer and the Executive agree as follows:
1. Employment. The Employer agrees to employ the Executive and the
Executive agrees to be employed by the Employer on the terms and conditions set
forth in this Agreement.
2. Capacity. The Executive shall serve the Employer as Chairman,
President and Chief Executive Officer, subject to election by the Board of
Directors of Xxxxxxxx or The Berlin City Bank, as the case may be (the "Board of
Directors"), and as a member of the Board of Directors, subject to election by
the shareholders of the Employer. The Executive shall also serve the Employer in
such other or additional offices as the Executive may be requested to serve by
the Board of Directors. In such capacity or capacities, the Executive shall
perform such services and duties in connection with the business, affairs and
operations of the Employer as may be assigned or delegated to the Executive from
time to time by or under the authority of the Board of Directors.
3. Term. Subject to the provisions of Section 6, the term of employment
pursuant to this Agreement (the "Term") shall be for three (3) years from the
Effective Date and shall be renewed automatically for periods of one (1) year
commencing at the first anniversary of the Effective Date and on each subsequent
anniversary thereafter, unless either the Executive or the Employer gives
written notice to the other not less than sixty (60) days prior to the date of
any such anniversary of such party's election not to extend the Term.
4. Compensation and Benefits. The regular compensation and benefits
payable to the Executive under this Agreement shall be as follows:
(a) Salary. For all services rendered by the Executive under
this Agreement, the Employer shall pay the Executive a salary (the
"Salary") at an annual rate consistent with the letter agreement, dated
March 14, 1997, by and between Xxxxxxxx X. Xxxxx and Xxxxxxx X.
Xxxxxxxx and attached hereto as Exhibit A, subject to increase from
time to time in the discretion of the Board of Directors. The Salary
shall be payable in periodic installments in accordance with the
Employer's usual practice for its senior executives.
(b) Bonus or Similar Incentive Programs. The Executive shall
be entitled to participate in any incentive or bonus program
established by the Board of Directors with such terms as may be
established in the sole discretion of the Board of Directors; or
(c) Regular Benefits. The Executive shall also be entitled to
participate in any employee benefit plans, medical insurance plans,
life insurance plans, disability income plans, retirement plans,
vacation plans, expense reimbursement plans and other benefit plans
which the Employer may from time to time have in effect for all or most
of its senior executives. Such participation shall be subject to the
terms of the applicable plan documents, generally applicable policies
of the Employer, applicable law and the discretion of the Board of
Directors or any administrative or other committee provided for in or
contemplated by any such plan. Nothing contained in this Agreement
shall be construed to create any obligation on the part of the Employer
to establish any such plan or to maintain the effectiveness of any such
plan which may be in effect from time to time.
(d) Taxation of Payments and Benefits. The Employer shall
undertake to make deductions, withholdings and tax reports with respect
to payments and benefits under this Agreement to the extent that it
reasonably and in good faith believes that it is required to make such
deductions, withholdings and tax reports. Payments under this Agreement
shall be in amounts net of any such deductions or withholdings. Nothing
in this Agreement shall be construed to require the Employer to make
any payments to compensate the Executive for any adverse tax effect
associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.
(e) Exclusivity of Salary and Benefits. Unless approved by the
Board of Directors, the Executive shall not be entitled to any payments
or benefits other than those provided under this Agreement.
5. Extent of Service. During the Executive's employment under this
Agreement, the Executive shall, subject to the direction and supervision of the
Board of Directors, devote the Executive's, best efforts and business judgment,
skill and knowledge to the advancement of the Employer's interests and to the
discharge of the Executive's duties and responsibilities under this Agreement.
The Executive shall not engage in any other business activity, except as may be
approved by the Board of Directors; provided that nothing in this Agreement
shall be construed as preventing the Executive from:
(a) investing the Executive's assets in any company or other
entity in a manner not prohibited by Section 7(d) and in such form or
manner as shall not require any material activities on the Executive's
part in connection with the operations or affairs of the companies or
other entities in which such investments are made; or
(b) engaging in religious, charitable or other community or
non-profit activities that do not impair the Executive's ability to
fulfill the Executive's duties and responsibilities under this
Agreement; or
(c) continuing to advise and consult regularly the activities
of Xxxxxxxxxxxx & Xxxxxxxx, Inc. in his current positions with the
same, provided that such advice and consultation does not unreasonably
interfere with the performance of the Executive's duties hereunder.
6. Termination and Termination Benefits. Notwithstanding the provisions
of Section 3, the Executive's employment under this Agreement shall terminate
under the following circumstances set forth in this Section 6.
(a) Termination by the Employer for Cause. The Executive's
employment under this Agreement may be terminated for cause without
further liability on the part of the Employer effective immediately
upon a two-thirds (2/3) vote of the Board of Directors and written
notice to the Executive. Only the following shall constitute "cause"
for such termination:
(i) dishonest statements or acts of the Executive
with respect to the business of the Employer or any affiliate
of the Employer;
(ii) the commission by or indictment of the Executive
for (A) a felony or (B) any misdemeanor involving moral
turpitude, deceit, dishonesty or fraud ("indictment," for
these purposes, meaning an indictment, probable cause hearing
or any other procedure pursuant to which an initial
determination of probable or reasonable cause with respect to
such offense is made);
(iii) material failure to perform to the reasonable
satisfaction of the Board of Directors a substantial portion
of the Executive's duties and responsibilities assigned or
delegated under this Agreement, which failure continues, in
the reasonable judgment of the Board of Directors, for sixty
(60) days after written notice given to the Executive by the
Board of Directors;
(iv) gross negligence, willful misconduct or
insubordination of the Executive with respect to the Employer
or any affiliate of the Employer; or
(v) material breach by the Executive of any of the
Executive's obligations under this Agreement.
(b) Termination by the Executive. The Executive's employment
under this Agreement may be terminated by the Executive by written
notice to the Board of Directors at least thirty (30) days prior to
such termination.
(c) Termination by the Employer Without Cause. Subject to the
payment of Termination Benefits pursuant to Section 6(d), the
Executive's employment under this Agreement may be terminated by the
Employer without cause upon written notice to the Executive by a
two-thirds (2/3) vote of the Board of Directors.
(d) Certain Termination Benefits. Unless otherwise
specifically provided in this Agreement or otherwise required by law,
all compensation and benefits payable to the Executive under this
Agreement shall terminate on the date of termination of the Executive's
employment under this Agreement. Notwithstanding the foregoing, in the
event of termination of the Executive's employment with the Employer
pursuant to Section 6(c) above, the Employer shall provide to the
Executive the following termination benefits ("Termination Benefits"):
(i) continuation of the Executive's Salary at the
rate then in effect pursuant to Section 4(a); and
(ii) continuation of group health plan benefits to
the extent authorized by and consistent with 29 U.S.C. ss.
1161 et seq. (commonly known as "COBRA"), with the cost of the
regular premium for such benefits shared in the same relative
proportion by the Employer and the Executive as in effect on
the date of termination.
The Termination Benefits set forth in (i) and (ii) above shall continue
effective until the expiration of the Term; provided that in the event
that the Executive commences any employment or self-employment during
the period during which the Executive is entitled to receive
Termination Benefits (the "Termination Benefits Period"), the remaining
amount of Salary due pursuant to Section 6(d)(i) for the period from
the commencement of such employment (other than in connection with the
activities of Xxxxxxxxxxxx & Xxxxxxxx, Inc.) or self-employment to the
end of the Termination Benefits Period shall be reduced by one-half of
the salary the Executive receives from such employment or
self-employment and, if the Executive receives benefits from such
employment or self-employment comparable to those benefits provided by
the Employer, the payments provided under Section 6(d)(ii) shall cease
effective as of the date of commencement of such employment or
self-employment. The Employer's liability for Salary continuation
pursuant to Section 6(d)(i) shall be reduced by the amount of any
severance pay due or otherwise paid to the Executive pursuant to any
severance pay plan or stay bonus plan of the Employer. Notwithstanding
the foregoing, nothing in this Section 6(d) shall be construed to
affect the Executive's right to receive COBRA continuation entirely at
the Executive's own cost to the extent that the Executive may continue
to be entitled to COBRA continuation after the Executive's right to
cost sharing under Section 6(d)(ii) ceases. The Executive shall be
obligated to give prompt notice of the date of commencement of any
employment or self-employment during the Termination Benefits Period
and shall respond promptly to any reasonable inquiries concerning any
employment or self-employment in which the Executive engages during the
Termination Benefits Period.
(e) Disability. If the Executive shall be disabled so as to be
unable to perform the essential functions of the Executive's then
existing position or positions under this Agreement with or without
reasonable accommodation, the Board of Directors of Xxxxxxxx by a
two-thirds (2/3) vote may remove the Executive from any
responsibilities and/or reassign the Executive to another position with
the Employer for the remainder of the Term or during the period of such
disability. Notwithstanding any such removal or reassignment, the
Executive shall continue to receive the Executive's full Salary (less
any disability pay or sick pay benefits to which the Executive may be
entitled under the Employer's policies) and benefits under Section 4 of
this Agreement (except to the extent that the Executive may be
ineligible for one or more such benefits under applicable plan terms)
for a period of time equal to the lesser of (i) one (1) year; or (ii)
the remainder of the Term. If any question shall arise as to whether
during any period the Executive is disabled so as to be unable to
perform the essential functions of the Executive's then existing
position or positions with or without reasonable accommodation, the
Executive may, and at the request of the Employer shall, submit to the
Employer a certification in reasonable detail by a physician selected
by the Employer to whom the Executive or the Executive's guardian has
no reasonable objection as to whether the Executive is so disabled or
how long such disability is expected to continue, and such
certification shall for the purposes of this Agreement be conclusive of
the issue. The Executive shall cooperate with any reasonable request of
the physician in connection with such certification. If such question
shall arise and the Executive shall fail to submit such certification,
the Employer's determination of such issue shall be binding on the
Executive. Nothing in this Section 6(e) shall be construed to waive the
Executive's rights, if any, under existing law including, without
limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. ss.2601
et seq. and the Americans with Disabilities Act, 42 U.S.C. ss.12101 et
seq.
(f) Termination Following a Change of Control. If there is a
Change of Control, as defined in Section 6(f)(i) below, during the
Term, the provisions of this Section 6(f) shall apply and shall
continue to apply throughout the remainder of the term of this
Agreement. If, within eighteen (18) months following a Change of
Control, the Executive's employment is terminated by the Employer or
the Executive following the occurrence of any of the events listed in
Section 6(f)(ii) below or if the Executive's employment is terminated
without cause (in accordance with Section 6(c) above), in lieu of any
payments under Section 6(d) above, the Employer shall pay to the
Executive (or the Executive's estate, if applicable) a lump sum amount
equal to 2.99 times the Executive's "base amount" within the meaning of
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended
(the "Code").
(i) Change of Control shall mean the occurrence of
one or more of the following events:
(A) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange
Act")) becomes a "beneficial owner" (as such term is
defined in Rule 13d-3 promulgated under the Exchange
Act) (other than the Employer, any trustee or other
fiduciary holding securities under an employee
benefit plan of the Employer, or any corporation
owned, directly or indirectly, by the stockholders of
the Employer, in substantially the same proportions
as their ownership of stock of Xxxxxxxx), directly or
indirectly, of securities of Xxxxxxxx, representing
fifty percent (50%) or more of the combined voting
power of Xxxxxxxx'x then outstanding securities; or
(B) persons who, as of the Effective Date,
constituted Xxxxxxxx'x Board of Directors (the
"Incumbent Board") cease for any reason including,
without limitation, as a result of a tender offer,
proxy contest, merger or similar transaction, to
constitute at least a majority of Xxxxxxxx'x Board of
Directors, provided that any person becoming a
director of Xxxxxxxx subsequent to the Effective Date
whose election was approved by at least a majority of
the directors then comprising the Incumbent Board
shall, for purposes of this Section 6(f), be
considered a member of the Incumbent Board; or
(C) the stockholders of Xxxxxxxx approve a
merger or consolidation of Xxxxxxxx with any other
corporation or other entity, other than (1) a merger
or consolidation which would result in the voting
securities of Xxxxxxxx outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity) more than fifty
percent (50%) of the combined voting power of the
voting securities of Xxxxxxxx or such surviving
entity outstanding immediately after such merger or
consolidation or (2) a merger or consolidation
effected to implement a recapitalization of Xxxxxxxx
(or similar transaction) in which no "person" (as
hereinabove defined) acquires more than fifty percent
(50%) of the combined voting power of Xxxxxxxx'x then
outstanding securities; or
(D) the stockholders of Xxxxxxxx approve a
plan of complete liquidation of Xxxxxxxx or an
agreement for the sale or disposition by Xxxxxxxx of
all or substantially all of Xxxxxxxx'x assets.
(ii) The events referred to in Section 6(f) above
shall be as follows:
(A) a reduction of the Executive's salary
other than a reduction that (1) is based on the
Employer's financial performance or (2) is similar to
the reduction made to the salaries provided to all or
most other senior executives of the Employer; or
(B) a significant change in the Executive's
responsibilities and/or duties which constitutes,
when compared to the Executive's responsibilities
and/or duties before the Change of Control, a
demotion; or
(C) a material loss of title or office; or
(D) the relocation of the offices at which
the Executive is principally employed as of the
Change of Control to a location more than fifty (50)
miles from such offices, which relocation is not
approved by the Executive.
(iii) The Executive shall provide the Employer with
reasonable notice and an opportunity to cure any of the events
listed in Section 6(f)(ii) and shall not be entitled to
compensation pursuant to this Section 6(f) unless the Employer
fails to cure within a reasonable period; and
(iv) It is the intention of the Executive and of the
Employer that no payments by the Employer to or for the
benefit of the Executive under this Agreement or any other
agreement or plan, if any, pursuant to which the Executive is
entitled to receive payments or benefits shall be
nondeductible to the Employer by reason of the operation of
Section 280G of the Code relating to parachute payments or any
like statutory or regulatory provision. Accordingly, and
notwithstanding any other provision of this Agreement or any
such agreement or plan, if by reason of the operation of said
Section 280G or any like statutory or regulatory provision,
any such payments exceed the amount which can be deducted by
the Employer, such payments shall be reduced to the maximum
amount which can be deducted by the Employer. To the extent
that payments exceeding such maximum deductible amount have
been made to or for the benefit of the Executive, such excess
payments shall be refunded to the Employer with interest
thereon at the applicable Federal rate determined under
Section 1274(d) of the Code, compounded annually, or at such
other rate as may be required in order that no such payments
shall be nondeductible to the Employer by reason of the
operation of said Section 280G or any like statutory or
regulatory provision. To the extent that there is more than
one method of reducing the payments to bring them within the
limitations of said Section 280G or any like statutory or
regulatory provision, the Executive shall determine which
method shall be followed, provided that if the Executive fails
to make such determination within forty-five (45) days after
the Employer has given notice of the need for such reduction,
the Employer may determine the method of such reduction in its
sole discretion.
7. Confidential Information, Noncompetition and Cooperation.
(a) Confidential Information. As used in this Agreement,
"Confidential Information" means information belonging to the Employer
which is of value to the Employer in the course of conducting its
business and the disclosure of which could result in a competitive or
other disadvantage to the Employer. Confidential Information includes,
without limitation, financial information, reports, and forecasts;
inventions, improvements and other intellectual property; trade
secrets; know-how; designs, processes or formulae; software; market or
sales information or plans; customer lists; and business plans,
prospects and opportunities (such as possible acquisitions or
dispositions of businesses or facilities) which have been discussed or
considered by the management of the Employer. Confidential Information
includes information developed by the Executive in the course of the
Executive's employment by the Employer, as well as other information to
which the Executive may have access in connection with the Executive's
employment. Confidential Information also includes the confidential
information of others with which the Employer has a business
relationship. Notwithstanding the foregoing, Confidential Information
does not include information in the public domain, unless due to breach
of the Executive's duties under Section 7(b).
(b) Confidentiality. The Executive understands and agrees that
the Executive's employment creates a relationship of confidence and
trust between the Executive and the Employer with respect to all
Confidential Information. At all times, both during the Executive's
employment with the Employer and after its termination, the Executive
will keep in confidence and trust all such Confidential Information,
and will not use or disclose any such Confidential Information without
the written consent of the Employer, except as may be necessary in the
ordinary course of performing the Executive's duties to the Employer.
(c) Documents, Records, etc. All documents, records, data,
apparatus, equipment and other physical property, whether or not
pertaining to Confidential Information, which are furnished to the
Executive by the Employer or are produced by the Executive in
connection with the Executive's employment will be and remain the sole
property of the Employer. The Executive will return to the Employer all
such materials and property as and when requested by the Employer. In
any event, the Executive will return all such materials and property
immediately upon termination of the Executive's employment for any
reason. The Executive will not retain with the Executive any such
material or property or any copies thereof after such termination.
(d) Noncompetition and Nonsolicitation. During the Term and
for one (1) year thereafter (or during the Termination Benefits Period,
if longer), the Executive (i) will not, directly or indirectly, whether
as owner, partner, shareholder, consultant, agent, employee,
co-venturer or otherwise, engage, participate, assist or invest in any
Competing Business (as hereinafter defined); (ii) will refrain from
directly or indirectly employing, attempting to employ, recruiting or
otherwise soliciting, inducing or influencing any person to leave
employment with the Employer (other than terminations of employment of
subordinate employees undertaken in the course of the Executive's
employment with the Employer); and (iii) will refrain from soliciting
or encouraging any customer or supplier to terminate or otherwise
modify adversely its business relationship with the Employer; provided,
however, that the foregoing one-year restriction shall not apply in the
event the Executive's employment under this Agreement is terminated
pursuant to Section 6(c) hereof. The Executive understands that the
restrictions set forth in this Section 7(d) are intended to protect the
Employer's interest in its Confidential Information and established
employee, customer and supplier relationships and goodwill, and agrees
that such restrictions are reasonable and appropriate for this purpose.
For purposes of this Agreement, the term "Competing Business" shall
mean a business (other than Xxxxxxxxxxxx & Xxxxxxxx, Inc.) conducted
anywhere in the State of New Hampshire which is competitive with any
business which the Employer or any of its affiliates conducts or
proposes to conduct at any time during the employment of the Executive.
Notwithstanding the foregoing, the Executive may own up to one percent
(1%) of the outstanding stock of a publicly held corporation which
constitutes or is affiliated with a Competing Business.
(e) Third-Party Agreements and Rights. The Executive hereby
confirms that the Executive is not bound by the terms of any agreement
with any previous employer or other party which restricts in any way
the Executive's use or disclosure of information or the Executive's
engagement in any business. The Executive represents to the Employer
that the Executive's execution of this Agreement, the Executive's
employment with the Employer and the performance of the Executive's
proposed duties for the Employer will not violate any obligations the
Executive may have to any such previous employer or other party. In the
Executive's work for the Employer, the Executive will not disclose or
make use of any information in violation of any agreements with or
rights of any such previous employer or other party, and the Executive
will not bring to the premises of the Employer any copies or other
tangible embodiments of non-public information belonging to or obtained
from any such previous employment or other party.
(f) Litigation and Regulatory Cooperation. During and after
the Executive's employment, the Executive shall cooperate fully with
the Employer in the defense or prosecution of any claims or actions now
in existence or which may be brought in the future against or on behalf
of the Employer which relate to events or occurrences that transpired
while the Executive was employed by the Employer. The Executive's full
cooperation in connection with such claims or actions shall include,
but not be limited to, being available to meet with counsel to prepare
for discovery or trial and to act as a witness on behalf of the
Employer at mutually convenient times. During and after the Executive's
employment, the Executive also shall cooperate fully with the Employer
in connection with any investigation or review of any federal, state or
local regulatory authority as any such investigation or review relates
to events or occurrences that transpired while the Executive was
employed by the Employer. The Employer shall reimburse the Executive
for any reasonable out-of-pocket expenses incurred in connection with
the Executive's performance of obligations pursuant to this Section
7(f).
(g) Injunction. The Executive agrees that it would be
difficult to measure any damages caused to the Employer which might
result from any breach by the Executive of the promises set forth in
this Section 7, and that in any event money damages would be an
inadequate remedy for any such breach. Accordingly, subject to Section
8 of this Agreement, the Executive agrees that if the Executive
breaches, or proposes to breach, any portion of this Agreement, the
Employer shall be entitled, in addition to all other remedies that it
may have, to an injunction or other appropriate equitable relief to
restrain any such breach without showing or proving any actual damage
to the Employer.
8. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of the
Executive's employment or the termination of that employment (including, without
limitation, any claims of unlawful employment discrimination whether based on
age or otherwise) shall, to the fullest extent permitted by law, be settled by
arbitration in any forum and form agreed upon by the parties or, in the absence
of such an agreement, under the auspices of the American Arbitration Association
("AAA") in Boston, Massachusetts in accordance with the Employment Dispute
Resolution Rules of the AAA, including, but not limited to, the rules and
procedures applicable to the selection of arbitrators, except that the
arbitrator shall apply the law as established by decisions of the U.S. Supreme
Court, the Court of Appeals for the First Circuit and the U.S. District Court
for the District of New Hampshire in deciding the merits of claims and defenses
under federal law or any state or federal anti-discrimination law, and any
awards to the Executive for violation of any anti-discrimination law shall not
exceed the maximum award to which the Executive could be entitled under the
applicable (or most analogous) federal anti-discrimination or civil rights laws.
In the event that any person or entity other than the Executive or the Employer
may be a party with regard to any such controversy or claim, such controversy or
claim shall be submitted to arbitration subject to such other person or entity's
agreement. Judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. This Section 8 shall be specifically
enforceable. Notwithstanding the foregoing, this Section 8 shall not preclude
either party from pursuing a court action for the sole purpose of obtaining a
temporary restraining order or a preliminary injunction in circumstances in
which such relief is appropriate; provided that any other relief shall be
pursued through an arbitration proceeding pursuant to this Section 8.
9. Consent to Jurisdiction. To the extent that any court action is
permitted consistent with or to enforce Section 8 of this Agreement, the parties
hereby consent to the jurisdiction of the Superior Court of the State of New
Hampshire and the United States District Court for the District of New
Hampshire. Accordingly, with respect to any such court action, the Executive (a)
submits to the personal jurisdiction of such courts; (b) consents to service of
process; and (c) waives any other requirement (whether imposed by statute, rule
of court, or otherwise) with respect to personal jurisdiction or service of
process.
10. Integration. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements between the parties with respect to any related subject matter.
11. Assignment; Successors and Assigns, etc. Neither the Employer nor
the Executive may make any assignment of this Agreement or any interest herein,
by operation of law or otherwise, without the prior written consent of the other
party; provided that the Employer may assign its rights under this Agreement
without the consent of the Executive in the event that the Employer shall effect
a reorganization, consolidate with or merge into any other corporation,
partnership, organization or other entity, or transfer all or substantially all
of its properties or assets to any other corporation, partnership, organization
or other entity. This Agreement shall inure to the benefit of and be binding
upon the Employer and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
12. Enforceability. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
13. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
14. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Executive at the last address the Executive has filed in writing with the
Employer or, in the case of the Employer, at its main offices, attention of the
Board of Directors, and shall be effective on the date of delivery in person or
by courier or three (3) days after the date mailed.
15. Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a duly authorized
representative of the Employer.
16. Governing Law. This is a New Hampshire contract and shall be
construed under and be governed in all respects by the laws of the State of New
Hampshire, without giving effect to the conflict of laws principles of such
State.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
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CONFIDENTIAL AND NOT FOR DISTRIBUTION
FOR CLIENT USE ONLY
MEMORANDUM
TO: TA Associates, Inc.
FROM: Xxxx XxXxxxxx, Xxxx Xxxx, Xxxxx Xxxxxx and Xxxx Xxxxxx
GPH Private Equity/Emerging Companies Group
RE: Leveraged Recaps
DATE: March 24, 1998
-----------------------------------------
Many of our recent private equity transactions have involved leveraged
recap transaction structures. This memorandum summarizes the principles that
have emerged as the guidelines for structuring these transactions. It is
envisioned that we will supplement these guidelines as appropriate based on
future transaction experience.1
ANALYTICAL FRAMEWORK
Leveraged recap accounting is related to the SEC's rules for so called
"push-down" accounting (SAB Topic 5J). These rules require that an acquiror
"push-down" purchase accounting to the financial statements of its target when
the acquiror purchases "substantially all" of the target's stock in a purchase
transaction. This results in a new basis in the target's assets, the elimination
of the target's retained earnings, and in most cases the addition of goodwill to
the target's books. This goodwill reduces the target's future reported earnings
for GAAP purposes. Conversely, leveraged recap accounting will apply, and
goodwill on the target's balance sheet will be avoided, when pre-transaction
stockholders continue to maintain a significant interest following the
transaction as "substantial investors."
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Employer, by its duly authorized officer, and by the
Executive, as of the Effective Date.
XXXXXXXX FINANCIAL, INC.
Attest:
By: /s/ Xxxxx X. X'Xxxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------------- ---------------------------
Name: Xxxxx X. X'Xxxxxx Name: Xxxxxxxx X. Xxxxx
Title: Executive Vice President Title: Vice Chairman
and Chief Financial Officer
THE BERLIN CITY BANK
Attest:
By: /s/ Xxxxx X. X'Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxx X. X'Xxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President Title: President and Chief
and Chief Financial Officer Executive Officer
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
