EXHIBIT 10.32
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EXECUTIVE CHANGE IN CONTROL AGREEMENT
NOT TO BE CONSTRUED AS AN EMPLOYMENT AGREEMENT
THE FIRST NATIONAL BANK OF LITCHFIELD
FIRST LITCHFIELD FINANCIAL CORPORATION
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx
WHEREAS, The First National Bank of Litchfield (the "Bank") and its
parent bank holding company, First Litchfield Financial Corporation (the
"Holding Company"), wish to employ Xxxxxx X. Xxxxx ("Employee") as President and
Chief Executive Officer of the Bank. The Bank and the Holding Company expect
that Employee's contributions and knowledge will continue to be of significant
benefit to the future growth and success of the Bank;
WHEREAS, the Boards of Directors of the Bank and the Holding Company
recognize that a change in control of the Bank and/or the Holding Company may
occur and that the threat of such change in control may create uncertainty and
may result in the distraction or departure of key personnel to the detriment of
the Bank and Holding Company and their stockholders;
WHEREAS, the Boards have determined that appropriate steps should be
taken to reinforce and encourage the continued dedication of members of the
Bank's management, including Employee, to their assigned duties in the face of
potential circumstances involving the possibility of such a change in control;
NOW THEREFORE, in addition to one dollar ($1.00) and other good and
valuable consideration paid by the Bank to Employee and in order to induce
Employee to be employed with the Bank and to perform Employee's duties in a
manner which is in the best interests of the Bank, the Bank and Holding Company
hereby agree to provide Employee with certain benefits in the event his
employment with the Bank terminates or is reassigned subsequent to a Change in
Control (as defined in Section 2 hereof) under the circumstances described
below.
1. Term of Agreement; Employment Status. This Agreement shall take
effect on June 17, 2002 and shall remain in full force and effect until June 1,
2003. All employees of Bank and Holding Company, including Employee, are
employees at will. The terms of this Agreement, therefore, do not and are not
intended to create either an express and/or implied contract of employment with
the Bank and/or the Holding Company. This Agreement simply provides certain
potential benefits to Employee in the event that a Change in Control occurs
prior to June 1, 2003 as hereinafter defined.
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2. Change in Control. No benefits shall be payable hereunder unless
prior to June 1, 2003 there shall have been a Change in Control as set forth
below, and thereafter within twenty-four (24) months of such Change in Control
Employee's employment with the Bank and/or its successor terminates or Employee
is reassigned in accordance with Section 3, below. For purposes of this
Agreement, a "Change in Control" shall mean any of the following:
(a) The acquisition of fifty percent (50%) or more of any class of
equity securities of the Holding Company by any person (or persons working
in concert) or entity after the date hereof;
(b) The acquisition of fifty percent (50%) or more of any class of
equity securities of the Bank by any person or entity other than Holding
Company;
(c) A merger, consolidation or reorganization to which the Bank or the
Holding Company is a party, if, as a result thereof, individuals who were
directors of the Bank or Holding Company, immediately before such
transaction shall cease to constitute a majority of the Board of Directors
of the surviving entity;
(d) A sale of all or substantially all of the assets of the Bank or
the Holding Company to another party;
(e) The assumption of all or substantially all of the deposits of the
Bank by another party other than the Federal Deposit Insurance Corporation;
or
(f) During any twenty-four (24) month period, individuals who at the
beginning of such period constitute the Board of Directors of the Bank and
the Holding Company, cease for any reason (other than death or disability)
to constitute at least a majority thereof unless the election or the
nomination for election by the stockholders of the Bank and the
stockholders of Holding Company, respectively, of each new director was
approved by a vote of at least a majority of the directors of the Bank or
of Holding Company as applicable, then still in office who were directors
of the Bank or the Holding Company, as applicable, at the beginning of the
period.
3. Termination Following Change in Control. If any of the events
described in Section 2 hereof constituting a Change in Control shall have
occurred, Employee shall be entitled to the benefits provided for in Section
4(a) hereof upon the termination or reassignment of his employment as a senior
executive officer of the Bank and/or its successor as provided in this Section
3, within twenty-four (24) months after such event, unless such employment is
terminated or reassigned: (i) by any regulatory authority (acting with proper
jurisdiction); or (ii) by the Board of Directors for cause; or (iii) because of
Employee's death, retirement or disability. Such benefits shall be reduced by
the amount of any severance paid to Employee by the Bank or its successor.
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(a) Retirement; Disability.
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(i) Termination of employment by the Bank based on retirement
shall mean the mandatory termination of employment in accordance with
the retirement policy of the Bank, including (at Employee's sole
election and as set forth in writing) early retirement, generally
applicable to its salaried employees or in accordance with any
retirement arrangement established with Employee's consent with
respect to Employee.
(ii) Termination of employment by the Bank based on disability
shall mean termination because of inability, as a result of incapacity
due to physical or mental illness, to perform the services required as
an employee for a period aggregating six (6) months or more within any
twelve (12) month period, or because Employee becomes or is deemed
disabled under any applicable policy providing disability insurance.
(b) Notice of Termination. The Bank agrees that in the event of
termination it will promptly furnish Employee with a written Notice of
Termination. Any purported termination of Employee shall be
communicated by written Notice of Termination to the Bank. For
purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall include the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
Employee's employment under the provision so indicated.
(c) Date of Termination. "Date of Termination" shall mean the
date on which a Notice of Termination is given; provided that, if
within five (5) days after any Notice of Termination is given, the
party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties, by a
binding and final arbitration award or by a final judgment, order or
decree of a court of competent jurisdiction (the time for appeal
therefrom having expired and no appeal having been perfected).
(d) Reassignment. Reassignment shall mean a reduction in base
salary or an involuntary reassignment of Employee's duties,
responsibilities, or benefits inconsistent with those of a senior
executive officer of a bank or the involuntary relocation of
Employee's primary duties and responsibilities to an office or
location greater than fifty (50) miles from Litchfield, Connecticut or
action which results in a significant worsening of the Employee's work
conditions (including, but not limited to, a significant change in
employment duties, responsibilities, required hours or otherwise).
4. Compensation Upon Termination or Reassignment.
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(a) If, within twenty-four (24) months after a Change in Control,
as defined in Section 2 hereof, shall have occurred, Employee's
employment with the Bank terminates or is reassigned as defined in
Section 3 (except by an agency acting with proper jurisdiction, or by
a board of directors for cause or as a result of death, retirement or
disability), then the Bank and/or
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its successor shall pay Employee within five (5) days after the Date
of Termination an amount equal to the sum of:
(i) Two (2) years of Employee's annual compensation based upon
the most recent aggregate base salary paid to Employee in the twelve
(12) month period immediately preceding his termination or
reassignment less amounts previously paid to Employee from the date of
Change in Control; plus
(ii) Reasonable legal fees and expenses incurred by Employee as a
result of such termination or reassignment (including all such fees
and expenses, if any, incurred in contesting or disputing any such
termination or reassignment or in seeking to obtain or enforce any
right or benefit provided for by this Agreement).
(b) Employee shall not be required to mitigate the amount of any
payment provided for in this Section 4 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this
Section 4 be reduced by any compensation earned by Employee as the
result of employment by another employer after the Date of Termination
or Reassignment, or otherwise.
(c) It is the intention of the parties to this Agreement that no
payments by the Bank to or for Employee's benefit under this Agreement
shall be non-deductible to the Bank by reason of the operation of
Section 280G of the Internal Revenue Code. Accordingly,
notwithstanding any other provision hereof, if by reason of the
operation of said Section 280G of the Internal Revenue Code, any such
payments exceed the amount which can be deducted by the Bank, the
amount of such payments shall be reduced to the maximum which can be
deducted by the Bank. To the extent that payments in excess of the
amount which can be deducted by the Bank have been made to and for
Employee's benefit, they shall be refunded with interest at the
applicable rate provided under Section 1274(d) of the Internal Revenue
Code, or at such other rate as may be required in order that no such
payment to or for Employee's benefit shall be non-deductible pursuant
to Section 280G of the Internal Revenue Code. Any payments made
hereunder which are not deductible by the Bank as a result of losses
which have been carried forward by the Bank for Federal tax purposes
shall not be deemed a non-deductible amount for purposes of this
Section 4(c).
5. Continuation of Insurance Benefits.
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Notwithstanding any other provision in this Agreement to the
contrary, the Bank and/or its successor shall maintain in full force
and effect for Employee's continued benefit, for the two (2) year
period beginning upon a Change in Control, all life insurance, medical,
health and accident and disability policies, plans, programs or
arrangements which were in effect immediately prior to the Change in
Control.
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6. Successors; Binding Agreement.
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(a) The Bank and the Holding Company will require any
successor (whether direct or indirect, by purchase, merger,
consolidation, acquisition of assets or assumption of liabilities or
otherwise) to all or substantially all of the business and/or assets
and/or deposits of the Bank, by agreement, to expressly assume and
agree to perform this Agreement in the same manner and to the same
extent that the Bank would be required to perform it if no such
succession had taken place. Failure of the Bank and/or Holding Company
to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle
Employee to compensation from the Bank in the same amount and on the
same terms as he would be entitled to hereunder if his employment had
terminated as a result of a Termination or Reassignment, as provided in
Section 3 hereof, after a Change in Control, except that for purposes
of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in
this Agreement, "Bank" shall mean the Bank as hereinbefore defined and
any successor to the business, assets and/or deposits as aforesaid
which executes and delivers the agreement provided for in this Section
6 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be
enforceable by Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
If Employee should die after any rights to receive the amounts
contemplated hereby have accrued to Employee but before such amounts
have been paid, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to his
devisee, legatee or other designee or, if there be no such designee, to
his estate.
7. Notices. All notices and other communications provided for
in this Agreement shall be in writing and shall be deemed to have been
duly given when delivered or mailed by United States registered mail,
return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement, provided that
all notices to the Bank and the Holding Company shall be directed to
the attention of the Board with a copy to the Chairman of the Board of
the Bank and the Chairman of the Board of the Holding Company or to
such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
8. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing and signed by Employee and such other
officer as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other or failure
to comply with any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by either party which are not expressly set forth in this
Agreement. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of
Connecticut and of the United States of America.
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9. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same instrument.
11. Arbitration. Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by
arbitration in Litchfield, Connecticut, 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
Employee promptly an amount equal to his full scheduled compensation in
effect when the notice giving rise to the dispute was given (including,
but not limited to, base salary) and provide Employee with all
scheduled 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 in accordance with Section 3
hereof. 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 Employee shall be entitled to seek specific
performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in
connection with this Agreement.
Agreed to this 17th day of June, 2002 by and among Employee,
The First National Bank of Litchfield, and First Litchfield Financial
Corporation.
THE FIRST NATIONAL BANK OF LITCHFIELD
By: /s/ Xxxxxxx X. Xxx
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Xxxxxxx X. Xxx
Its: Chairman of the Board
Duly Authorized
EMPLOYEE
Signature: /s/ Xxxxxx X. Xxxxx
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Printed Name: Xxxxxx X. Xxxxx
FIRST LITCHFIELD FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxx
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Xxxxxxx X. Xxx
Its: Chairman of the Board
Duly Authorized
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STATE OF CONNECTICUT )
: ss.: Litchfield
COUNTY OF LITCHFIELD )
On this the 17th day of June, 2002, before me, the undersigned,
personally appeared Xxxxxxx X. Xxx, who acknowledged himself to be the Chairman
of the Board of THE FIRST NATIONAL BANK OF LITCHFIELD, and that he as such
Chairman, being authorized so to do, executed the foregoing instrument for the
purposes therein contained by signing his name.
In Witness Whereof, I hereunto set my hand.
/s/ Coral W. Ozerhoski
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Commissioner of the Superior Court/Notary Public
My Commission Expires: August 31, 2003
STATE OF CONNECTICUT
ss.: Litchfield
COUNTY OF LITCHFIELD
On this the 17th day of June, 2002, before me, the undersigned,
personally appeared Xxxxxxx X. Xxx, who acknowledged himself to be the Chairman
of the Board of FIRST LITCHFIELD FINANCIAL CORPORATION, and that he as such
Chairman, being authorized so to do, executed the foregoing instrument for the
purposes therein contained by signing his name.
In Witness Whereof, I hereunto set my hand.
/s/ Coral W. Ozerhoski
---------------------------
Commissioner of the Superior Court/Notary Public
My Commission Expires: August 31, 2003
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STATE OF CONNECTICUT )
: ss.: Litchfield
COUNTY OF LITCHFIELD )
On this the 17th day of June, 2002, before me, the undersigned officer,
personally appeared Xxxxxx X. Xxxxx, known to me or satisfactorily proven to be
the person signing the foregoing document and acknowledged that he executed the
same for the purposes therein combined as his free act and deed.
In Witness Whereof, I hereunto set my hand.
/s/ Xxxxx X. Xxxxxxxxxxx
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Commissioner of the Superior Court/Notary Public
My Commission Expires: March 31, 2007
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