EXHIBIT 10(a)(6)
AMENDED AND RESTATED
SENIOR MANAGEMENT
CHANGE OF CONTROL AGREEMENT
This AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT (the "Agreement")
is made and entered into as of November 3, 2003, by and between XXXXXX
X. X'XXXXXXX of Xxxxxxx, Massachusetts ("Executive") and PATRIOT
NATIONAL BANK, a national banking association with headquarters located
in Stamford, Connecticut ("Bank").
W I T N E S S E T H
WHEREAS, the Executive and the Bank entered into a Senior Management
Change of Control Agreement dated as of May 1, 2001 (the "Original
Change of Control Agreement") and the Executive and the Bank desire to
modify certain provisions of the Original Change of Control Agreement
and to amend and restate such agreement in its entirety as set forth
herein; and
WHEREAS, it is contemplated that from time to time one or more entities
may consider the possibility of acquiring Patriot (as hereinafter
defined) or that a Change in Control (as hereinafter defined) may
otherwise occur, with or without the approval of the Board of Directors
of Bancorp (as hereinafter defined) or the Board of Directors of Bank
(as hereinafter defined); and
WHEREAS, the Board of Directors of Bank has determined that it is in the
best interests of Bank and its securityholders to provide incentive to
Executive to remain employed as an executive officer of Bank during any
period prior to or during a possible Change of Control of Patriot and
for a period of up to [six months] following a Change of Control of
Patriot, with the continued dedication and objectivity of Executive,
notwithstanding the possibility, threat or occurrence of a Change of
Control; and
WHEREAS, the Parties (as hereinafter defined) desire to enter into this
Agreement to reflect the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter described and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Parties
hereto hereby amend and restate the Original Change of Control Agreement
in its entirety and agree as follows:
1. Defined Terms. The terms defined below shall have the following
meanings for purposes of this Agreement:
(a) "Agreement" means this Amended and Restated Senior Management Change
of Control Agreement, as amended, restated, supplemented or modified
from time to time and together with any exhibits or attachments hereto.
(b) "Bancorp" means Patriot National Bancorp, Inc., a Connecticut
corporation.
(c) "Bank" means Patriot National Bank, a national banking association,
and wholly-owned subsidiary of Bancorp.
(d) "Board of Directors of Bancorp" shall mean the board of directors of
Bancorp.
(e) "Board of Directors of Bank" shall mean the board of directors of
Bank.
(f) "Change of Control" means:
(i) a change in control of the direction and administration of Patriot's
business of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A (or any successor rule or
regulation) promulgated under the Exchange Act, whether or not Bank or
Bancorp is then subject to such reporting requirements;
(ii) any person (as such term is used in Sections 14(d) and 14(d)(2) of
the Exchange Act but excluding any employee benefit plan of Patriot),
other than (x) Xxxxxx Xx Xxxx and his family members or family trusts,
(y) Xxxx XxXxxx and his family members or family trusts, or (z) any
trustee or other fiduciary holding securities under an employee benefit
plan of Patriot, by merger or otherwise, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Bancorp representing 35% or more of the
combined voting power of Bancorp's outstanding securities then entitled
ordinarily (and apart from rights accruing under special circumstances)
to vote for the election of directors;
(iii) the Board of Directors of Bancorp shall approve a sale of all or
substantially all of the assets of Bancorp;
(iv) the Board of Directors of Bank shall approve a sale of all or
substantially all of the assets of Bank;
(v) the Board of Directors of Bancorp shall approve any merger,
consolidation or like business combination or reorganization of Bancorp,
the consummation of which would result in the occurrence of any event
described in clause (ii) above;
(vi) the Board of Directors of Bank shall approve any merger,
consolidation or like business combination or reorganization of Bank,
the consummation of which would result in the occurrence of any event
described in clause (ii) above;
(vii) the Board of Directors of Bancorp determines that any person (as
such term is used in Sections 14(d) and 14(d)(2) of the Exchange Act but
excluding any employee benefit plan of Bancorp), other than (i) Xxxxxx
Xx Xxxx and his family members of family trusts or (ii) Xxxx XxXxxx and
his family members or family trusts, directly or indirectly exercises a
controlling influence over the management or policies of Bancorp; or
(viii) the Board of Directors of Bank determines that any person (as
such term is used in Sections 14(d) and 14(d)(2) of the Exchange Act but
excluding any employee benefit plan of Bank), other than (i) Xxxxxx Xx
Xxxx and his family members or family trusts or (ii) Xxxx XxXxxx and his
family members or family trusts, directly or indirectly exercises a
controlling influence over the management or policies of Bank;
provided, however, that (i) the filing of a Form F-11A by any person or
(ii) any event mandated or directed by a regulatory body having
jurisdiction over Bancorp's or Bank's operations, shall not be deemed a
Change of Control.
(g) "Change of Control Payments" has the meaning set forth in Section 2
of this Agreement.
(h) "Cause" shall mean (i) the continued failure by Executive
substantially to perform his duties as an executive officer of Bank
(other than any such failure resulting from his incapacity due to
physical or mental illness) or (ii) the engaging by Executive in conduct
which is materially injurious to Bank, monetarily or otherwise, in
either case as determined by the Board of Directors of Bank.
(i) "Disability" means any physical or mental condition that (i) would
qualify Executive for a disability benefit under any long-term
disability plan maintained by Bank and applicable to such Executive or
(ii) renders Executive unable to perform substantially his obligations
as an executive officer of Bank for the reasonably foreseeable future
(not less than ninety (90) days), as determined by the Board of
Directors of Bank after considering competent medical evidence.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(k) "Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
(l) "Party" or "Parties" means, individually or collectively, Executive
and Bank.
(m) "Patriot" means, collectively, Bancorp and Bank.
2. Change of Control Payment.
(a) If there is a Change of Control, (i) during any time Executive is a
full-time executive officer of Bank, or (ii) within six (6) months
following Executive's termination of employment by Bank, other than for
Cause or by reason of Executive's death or Disability, then Executive
shall be entitled to receive a payment (the "Change of Control Payment")
in consideration of services previously rendered to Bank. The Change of
Control Payment shall be made as a lump sum cash payment equal to the
greater of (A) two times (2x) Executive's annual base salary (calculated
as of the date of the Change of Control or, in the case of Section
2(a)(ii), calculated as of the date of prior termination), or (B)
Executive's total compensation, including salary and any cash incentive
compensation, from Bank for services rendered for the last full calendar
year immediately preceding the Change of Control. The Change of Control
Payment shall be paid in full within 15 days following the date of the
Change of Control; provided, however, that such payment may be deferred
for such period (not to exceed six months) following the date of the
Change of Control as the Bank requests that Executive continue to
provide services to it. If Executive voluntarily terminates employment
with Bank prior to the date (not more than six months following the date
of the Change of Control) specified by Bank, Executive shall forfeit his
right to receive the Change of Control Payment. The Change of Control
Payment shall not be reduced by any compensation which Executive may
receive from Bank or from other employment with another employer should
Executive's employment with Bank terminate. In addition, and
notwithstanding the foregoing, in the event Executive gives Bank notice
that Executive will voluntarily terminate his employment pursuant to his
employment agreement with Bank and thereafter a Change of Control
occurs, Executive shall have no right to receive the Change of Control
Payment.
(b) All payments made pursuant to this Agreement will be subject to
withholding of applicable income and employment taxes.
(c) If, after a Change of Control, Executive prevails in any action to
enforce this Agreement, then Bank shall be obligated to reimburse
Executive for all reasonable fees and expenses, including reasonable
attorneys' fees of counsel chosen by Executive in his sole discretion.
(d) Notwithstanding any other provision of this Agreement or of any
other agreement, understanding or compensation plan, Bank shall not be
obligated to pay any amounts which violate restrictions imposed, or
which may in the future be imposed, on such payments by Bank pursuant to
Section 18(k)(1) of the Federal Deposit Insurance Act, or any
regulations or orders which are or may be promulgated thereunder; nor
shall any payments be made which would constitute an "unsafe or unsound
banking practice" pursuant to 12 U.C.C. Section 18(b).
(e) Notwithstanding any other provision hereof, in the event that any
payment or benefit received or to be received by Executive in connection
with a Change of Control would not be deductible (in whole or part) as a
result of Section 280G of the Internal Revenue Code, by Bank, an
affiliate or other person making such payment or providing such benefit,
the Change of Control Payment shall reduced until no portion is not
deductible, or the Change of Control Payment is reduced to zero. For
purposes of this limitation, (i) no portion of the Change of Control
Payment the receipt or enjoyment of which Executive shall have
effectively waived in writing prior to the date of payment of the Change
of Control Payment shall be taken into account; (ii) no portion of the
Change of Control Payment shall be taken into account which in the
opinion of tax counsel selected by Bank's independent auditors and
acceptable to Executive does not constitute a "parachute payment" within
the meaning of Section 280G(b)(2) of the Internal Revenue Code; (iii)
the Change of Control Payment shall be reduced only to the extent
necessary so that such payment shall constitute reasonable compensation
for services actually rendered within the meaning of Section 280G(b)(4)
of the Internal Revenue Code or are otherwise not subject to
disallowance as deductions, in the opinion of the tax counsel referred
to in clause (ii); and (iv) the value of any non cash benefit or any
deferred payment or benefit included in the Change of Control Payment
shall be determined by Bank's independent auditors in accordance with
the principles of Sections 280G(d)(3) and (4) of the Internal Revenue
Code.
3. Term. This Agreement shall terminate on the earliest of: (i)
immediately, upon Executive's termination of employment with Bank for
Cause, death or Disability, (ii) six months following Executive's
termination of employment with Bank, other than for Cause, death or
Disability, or (iii) six months following receipt by Executive of the
Change of Control Payment.
4. Assignment. This Agreement will be binding on and will inure to the
benefit of the Parties hereto and their respective successors, permitted
assigns and legal representatives. Without otherwise limiting the
foregoing, "Bank" as used herein shall refer to any successor
institution whether by merger, consolidation, acquisition or otherwise.
5. Non-Competition Agreement. If Executive receives the Change of
Control Payment, Executive absolutely and unconditionally agrees with
Bank that, for a period of six (6) months from the date of receipt of
the Change of Control Payment, Executive will not, anywhere in the
Restricted Area (as defined below), either directly or indirectly,
solely or jointly with any person or persons (a "Competitor"), as an
employee, consultant or advisor (whether or not engaged in business for
profit), or as an individual proprietor, partner, shareholder (provided
that ownership of less than 5% of the voting power shall be permitted),
director, officer, joint venturer, investor (provided that such
investment will not be a violation if it is limited to less than 5% of
the ownership of such entity), lender or in any other capacity, compete
with the business of the Bank as conducted or proposed to be conducted
as of the date of the Change of Control. As used herein, "Restricted
Area" shall be the cities of Stamford and Norwalk, Connecticut, the Town
of Greenwich, Connecticut, and any town or branch in which the Bank has
an office as of the time of the Change of Control.
6. Entire Agreement; No Waiver. This Agreement contains the entire
agreement between the Parties with respect to the subject matter herein
and may not be modified or amended except by a written instrument signed
by the Parties. Neither the failure to insist upon strict performance of
any of the terms, covenants or conditions of this Agreement, nor the
acceptance of monies due hereunder with knowledge of a breach of this
Agreement, shall be deemed a waiver of any rights or remedies that
either Party may have or a waiver of any subsequent breach or default in
any of such agreements, terms, covenants and conditions.
7. Further Instruments. Each of the Parties agrees to execute all
further instruments and documents and to take all further action as the
other Party may reasonably request in order to effectuate the terms and
purposes of this Agreement.
8. Modification and Severability. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision
shall be deemed modified to the extent necessary to make it enforceable
under applicable law. If any such provision is not enforceable as set
forth in the preceding sentence, the unenforceability of such provision
shall not affect the other provisions of this Agreement, but this
Agreement shall be construed as if such unenforceable provision had
never been contained herein.
9. Governing Law. It is the intention of the Parties that the internal
substantive laws, and not the laws of conflicts, of the State of
Connecticut should govern the enforceability and validity of this
Agreement, the construction of its terms and the interpretation of the
rights and duties of the Parties.
10. Jury Waiver. The Parties, and any principals for whom they are
agents, waive the right to a trial by jury in any action arising between
the Parties or their principals under this Agreement, whether such
actions are claims in contract, tort, statute, or otherwise, or made by
claim, counterclaim, third-party claim or otherwise.
11. Notices. All notices, requests, consents, instructions, approvals
and other communications required or permitted hereunder shall be
validly given, if in writing and delivered personally, or sent by
registered or certified mail or nationally recognized air courier
service, postage prepaid at the address listed above or at such other
address as such Party may specify by written notice to each other Party.
Each such notice, request, consent, instruction, approval and other
communication shall for all purposes of this Agreement be treated as
being effective or having been given when delivered, if delivered
personally, or, if sent by mail, at the earlier of its actual receipt or
three (3) days after the same has been deposited in a regularly
maintained receptacle for the deposit of United States mail, addressed
and postage prepaid as aforesaid, and if by air courier, one (1) day
after the same has been deposited with such air courier.
12. Headings. The titles and headings of the various sections and
paragraphs in this Agreement are intended solely for convenience of
reference and are not intended for any other purpose whatsoever, or to
explain, modify or place any construction upon or on any of the
provisions of this Agreement.
13. Interpretation. This Agreement shall be construed as a whole
according to its fair meaning. It shall not be construed strictly for or
against either Party. Unless the context indicates otherwise, the term
"or" shall be deemed to include the term "and" and the singular or
plural number shall be deemed to include the other.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but which
collectively will constitute one and the same instrument.
[Signature page follows]
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
date first above written.
PATRIOT NATIONAL BANK
By: __________________________________
Chairman of the Board of Directors
EXECUTIVE
__________________________________
Xxxxxx X. X'Xxxxxxx
