Exhibit 10.4.1
EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of March 1, 1994, is between NORWALK
SAVINGS SOCIETY, a mutual savings bank organized and existing under the laws of
the State of Connecticut with a headquarters located in Norwalk, Connecticut
(the "Bank"), and XXXXXX X. XXXXXXXXX of Yorktown Heights, New York
("Executive").
RECITALS
The Bank desires to enter into an Employment Agreement with Executive for
several primary reasons: (1) to provide Executive with job security,
particularly in the event that the Bank experiences a change-of-control; (2) to
provide incentive to Executive in the discharge of his responsibilities to the
Bank; (3) to define Executive's duties and terms of employment; and (4) to
obtain certain contractual commitments from Executive.
The Executive desires to enter into an Employment Agreement primarily to
obtain contractual commitments from the Bank.
The Bank and Executive contemplate that the Bank will: (i) disclose to
Executive information concerning the Bank's business affairs, including certain
confidential information; and (ii) assist Executive in establishing good will
and rapport with certain customers of the Bank. The use by Executive of this
information, good will and rapport in competing with or in aiding others in
competing with the Bank would have a detrimental effect on future profitable
operations of the Bank.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter described, the parties agree as follows:
1. Term of Employment. The Bank agrees to employ Executive, and Executive
agrees to accept employment with the Bank for a term commencing on March 1,
1994 and continuing for a period of one (1) year, unless subsequently
extended or sooner terminated as provided in this Agreement (the
"Employment Period").
2. Duties.
(a) During the Employment Period, Executive shall perform the duties and
exercise the powers relating to the office of Senior Vice President
and Chief Financial Officer (provided such designations may change
during the course of the Employment Period) as the Bank shall from
time to time assign to him. All duties assigned shall be consistent
with the customary duties of persons exercising the functions of the
above-described offices at a Connecticut-chartered savings bank, and,
if the Bank converts from mutual to capital stock form, at a capital
stock savings bank.
(b) During the Employment Period, Executive shall devote his entire
business time, best efforts and ability to the business of the Bank,
shall faithfully and diligently perform his duties, shall comply in
all material respects with the overall policies established by the
Board of Directors of the Bank and shall do all that is reasonably in
his power to promote, develop and extend the business of the Bank.
3. Compensation and Benefits.
(a) Salary. The Bank shall pay Executive as compensation for his
services during the Employment Period an annual base salary of Eighty-
Five Thousand Dollars ($85,000.00).
Salary payments shall be made in equal increments consistent with the
Bank's standard payroll practices for its officers. The base annual
salary shall be reviewed by the Directors each year during the
Employment Period and set by the Directors in an amount not less than
the prior year's salary; any increase in annual salary may take the
form of a contingent increase based upon achievement of articulated
personal or corporate goals, or both.
(b) Expenses. Upon submission of appropriate invoices or vouchers, the
Bank shall pay or reimburse Executive for all reasonable expenses
incurred by him in the performance of his duties under this Agreement
in furthering the business, and in keeping with the policies, of the
Bank.
(c) Vacation. Executive shall be entitled to four (4) weeks paid vacation
each contract year, to be taken each year at a time or times as shall
be mutually agreed upon by the Bank and Executive and consistent with
applicable regulatory requirements. If Executive fails to use all of
his vacation time during a particular calendar year, the unused
portion shall not be carried over to the subsequent year nor shall he
be paid additionally for such unused time.
(d) Incentive Compensation. The Bank's Board of Directors, in its sole
discretion, may authorize the payment of cash incentive compensation
to Executive from time to time. Payment of incentive compensation will
not set a precedent requiring or suggesting that similar incentive
compensation will be paid in the future.
(e) Insurance Policies
i. Term Life Insurance. During the Employment Period, Bank shall
provide term life insurance coverage for Executive in such form
and amount as is not less
favorable than that coverage provided by the Bank to other Bank
employees from time to time generally.
ii. Key Man Insurance. During the Employment Period, Executive shall
permit the Bank to insure his life under a policy or policies of
life insurance issued by an insurance company or companies
selected by the Bank, and to name the Bank as sole beneficiary
thereunder. Executive agrees to submit to any physical
examinations which may be reasonably required in connection with
such policies.
iii. Disability Insurance. During the Employment Period, Bank shall
provide Executive with disability insurance coverage in such form
and amount consistent with that provided to other Bank employees
generally.
(f) Benefits. During the Employment Period, Executive shall be entitled
to and shall be included in any employee welfare and retirement plan
or program of the Bank available generally to its employees and/or
officers including, without limitation, plans for hospital services,
medical services benefits, sick pay, dental and other health plans.
(g) Stock Plan. During the Employment Period, Executive may be included
in any stock incentive or stock compensation plan as the Board of
Directors of the Bank may determine.
4. Disability. If during any period in which Executive shall have continued
to perform his duties as an employee of the Bank, Executive shall incur a
total or partial disability (as defined in subparagraph (d) below), then
until the earlier of (a) 180 days after the date such disability is
incurred, or (b) the expiration of the term of the Employment Period
(either shall be termed the "Disability Period"), the Bank shall pay
Executive during the Disability Period on the basis of his then-regular
salary (any payments that Executive does or would otherwise receive
pursuant to the Bank's disability coverage for employees generally for this
period of disability shall be set off against these payments).
(a) If Executive's total disability shall terminate prior to the
expiration of the Employment Period, then Executive shall return to
full and active employment with the Bank under the terms of this
Agreement; provided that if he shall again become disabled within a
period of three (3) months after such return, other than by reason of
an event which is not causatively related to his original disability,
then Executive shall be deemed to have been continuously disabled from
the date he incurred his original disability;
(b) In the event Executive shall incur a partial disability (as defined in
(d) below), then during the period of the partial disability, the
compensation to be paid to him in consideration of his services to the
Bank shall be equitably adjusted to reflect the time that he is able
to devote to the affairs of and the value of the service he is able to
impart to the Bank; provided, however, that during the Disability
Period, the compensation shall not be less than Executive would have
received under this Section 4 had he been totally rather than
partially disabled (this is to say, he shall receive his then-regular
salary for that Disability Period);
(c) Payments to Executive under this Section 4 shall be reduced by the
amounts, if any, as may be payable to him by reason of his disability
under policies of insurance maintained and/or paid for by the Bank;
(d) As used in this Agreement, the term "total disability" shall mean a
disability such that, for physical or mental reasons, Executive is
unable to perform substantially his obligations hereunder for the
reasonably foreseeable future (not less than 90 days), as determined
by the Bank's Board of Directors after considering competent medical
evidence. As used in this Agreement, the term "partial disability"
shall mean a disability, other than a total disability, such that, for
physical or mental reasons, Executive is unable to perform a material
portion of his usual duties at the Bank on a full-time basis. As
determined by the Bank's Board of Directors after considering
competent medical evidence.
5. Termination.
(a) Termination by Death. If Executive dies during the Employment Period,
the Bank's obligations under this Agreement shall terminate
immediately and Executive's estate shall be entitled to all arrearages
of salary and expenses but shall not be entitled to further
compensation.
(b) Termination With or Without Cause. This Agreement and Executive's
employment with the Bank may be terminated for cause at any time upon
thirty (30) days advance written notice from the Bank to Executive,
which notice shall set forth the facts on which the termination is
based. Upon termination, Executive shall be entitled to all arrearages
of salary and expenses, but shall not be entitled to further
compensation or benefits. As used in this Agreement, and without
limitation, "cause" shall include: (i) Executive's conviction by any
trial court of any crime involving fraud, embezzlement, theft or
dishonesty; (ii) serious willful misconduct by Executive,
including personal dishonesty in connection with Bank business or
customers or the breach of a fiduciary duty to the Bank or its
customers; (iii) the total disability of Executive, as defined in
Paragraph 4 above; (iv) any material breach by Executive of this
Agreement; or (v) if the Bank's regulatory authorities issue an order
removing Executive from his positions at the Bank, or if such
regulatory authorities inform the Directors that continuation of
Executive in his position at the Bank would constitute an unsafe and
unsound banking practice. Executive's employment may be terminated by
the Bank without cause at any time, provided that, in such event, Bank
shall pay Executive, in one lump-sum payment paid within 30 days after
such termination, an amount equal to the higher of the following: (i)
that amount which is equal to the aggregate amount of salary payments
that would be made to Executive for the remainder of the Employment
Period, calculated at the Executive's then annual base salary; or (ii)
that amount which is equal to the number of Executive's full years of
service to the Bank at the time of termination multiplied by a number
derived by dividing his then annual base salary by twenty-six (26). In
addition, if Executive is terminated without cause, the Bank shall
either continue to carry Executive at no cost to him under the Bank's
employee hospital, medical services, dental and other health plans for
the remainder of the Employment Period, or, if he is not eligible for
continued coverage under such plans, pay the cost of similar coverage
for Executive pursuant to COBRA or similar private insurance plans
offering comparable coverage. Also, if Executive is terminated without
cause, the Bank agrees to provide Executive, at his request, with
outplacement services for a period not to exceed one year after the
date of termination, provided the Bank's obligation to provide these
services shall not exceed a maximum aggregate cost of $25,000.
Executive, should he elect to receive such services, agrees to pursue
possible employment opportunities diligently and in good faith, and to
cooperate in all reasonable respects with the requests and
instructions of the outplacement services firm. A termination "without
cause" shall mean any termination not satisfying the "cause" criteria
specified in this Paragraph 5(b).
(c) Immediate Cessation of Employment. In the event Executive's employment
terminates pursuant to subparagraph (b), the Bank may further direct
Executive to cease immediately his activities on behalf of the Bank
and to discontinue using any of the Bank's facilities; provided,
however, that in the event of these directions, the Bank shall
continue to provide Executive with salary and other benefits required
by this Agreement until the expiration of the notice period set forth
in sub-paragraph (b).
(d) Survival. Anything in this Agreement to the contrary not withstanding,
the provisions of Paragraphs 6, 7, 8, 9 and 10 shall survive the
termination of Executive's employment with the Bank.
6. Non-Competition Agreement.
(a) Executive absolutely and unconditionally covenants and agrees with the
Bank that, from the period commencing on the date of this Agreement
and continuing for a period of one (1) year following the termination
of his employment as provided for in this Agreement, Executive will
not, anywhere in the Restricted Area (as defined in subparagraph (b)
below), either directly or indirectly, solely or jointly with any
other person or persons (a "Competitor"), as an employee, consultant,
or advisor (whether or not engaged in business for profit), or an
individual proprietor, partner, shareholder (provided that share
ownership of less than 5% of the share 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 (i) as conducted as of the date
of execution of this Agreement; or (ii) as conducted during the
Employment Period; or (iii) as conducted as of the end of the
Employment Period; or (iv) as proposed to be conducted by the Bank as
of the end of the Employment Period (collectively, the "Business").
(b) As used in this Section 6: (i) the term "compete" shall mean engaging,
participating, or being involved in any respect in the business of
banking, or furnishing any aid, assistance or service of any kind to
any person in connection with, the Business; (ii) the term "Restricted
Area" shall refer to a Competitor which has its home office in
Norwalk, or which has a branch or other place of business in Norwalk
and where Executive is based or in which he spends the majority of his
office time.
(c) If a court or arbitration panel concludes through appropriate
proceedings that Executive has breached the covenant set forth in this
Section, the term of the covenant shall be extended for a term equal
to the period for which Executive is determined to have breached the
covenant.
7. Covenant Not to Disclose. Executive agrees that, by virtue of the
performance of the normal duties of his position with the Bank and by
virtue of the relationship of trust and confidence between Executive and
the Bank, he possesses and will possess certain data and knowledge of
operations of the
Bank which are proprietary in nature and confidential. Executive covenants
and agrees that he will not, at any time, whether during the term of this
Agreement or otherwise, reveal, divulge or make known to any person(other
than the Bank) or use for his own account, any confidential or proprietary
record, data, trade secret, price policy, rate structure, personnel policy,
method or practice of obtaining or doing business by the Bank, or any other
confidential or proprietary information whatever (the "Confidential
Information"), whether or not obtained with the knowledge and permission of
the Bank and whether or not developed, devised or otherwise created in
whole or in part by his efforts. Executive further covenants and agrees
that he shall retain all such knowledge and information which he shall
acquire or develop respecting such Confidential Information in trust for
the sole benefit of the Bank and its successors and assigns.
8. Non-Interference Covenant. Executive covenants and agrees that he will
not, for a period of one (1) year following the termination of this
Agreement, directly or indirectly, for whatever reason, whether for his own
account or for the account of any other person, firm, corporation or other
organization: (i) solicit, employ, or otherwise interfere with any of the
Bank's contracts or relationships with any employee, officer, director or
any independent contractor who is employed by or associated with the Bank
at the time of termination of this Agreement; or (ii) actively solicit, or
otherwise actively interfere with any of the Bank's contracts or
relationships with any independent contractor, customer, client or supplier
of the Bank.
9. Business Materials and Property Disclosure. All written materials, records
and documents made by Executive or coming into his possession concerning
the business or affairs of the Bank shall be the sole property of the Bank
and, upon termination of his employment with the Bank, Executive shall
deliver the same to the Bank and shall retain no copies. Executive shall
also return to the Bank all other property in his possession owned by the
Bank upon termination of his employment.
10. Breach by Executive. It is expressly understood, acknowledged and agreed
by Executive that (i) the restrictions contained in Sections 6, 7, 8 and 9
of this Agreement represent a reasonable and necessary protection of the
legitimate interests of the Bank and that his failure to observe and comply
with his covenants and agreements in those Sections will cause irreparable
harm to the Bank; (ii) it is and will continue to be difficult to ascertain
the nature, scope and extent of the harm; and (iii) a remedy at law for
such failure by Executive will be inadequate. Accordingly, it is the
intention of the parties that, in addition to any other rights and remedies
which the Bank may have in the event of any breach of said Sections, the
Bank shall be entitled, and is
expressly and irrevocably authorized by Executive, to demand and obtain
specific performance, including without limitation, temporary and permanent
injunctive relief, and all other appropriate equitable relief against
Executive in order to enforce against Executive, or in order to prevent any
breach or any threatened breach by Executive, of the covenants and
agreements contained in those Sections.
11. Change of Control. If during the Employment Period and thereafter
(provided the Executive is then a full-time officer of the Bank) there is a
"Change of Control" of the Bank, the Executive shall be entitled to receive
a severance payment in consideration of services previously rendered to the
Bank. The severance payment shall be made as a lump sum cash payment as
provided for herein, unless the Executive and Bank enter into a new
employment agreement within two months after the Change of Control. The
amount of such severance payment shall equal three (3) times the
Executive's average annual compensation which was payable by the Bank and
was includible in the Executive's gross income for federal income tax
purposes with respect to the five (5) most recent taxable years ending
before the date on which the Change of Control occurs (or for such shorter
period as Executive has been employed by the Bank), less one dollar.
Payment under this Section 11 shall be in lieu of any amount due or payable
to the Executive under Sections 3 and 5. Payment under this Section 11
shall be paid in full within 90 days following the date of the Change of
Control and shall not be reduced by any compensation which the Executive
may receive from other employment with another employer after termination
of the Executive's employment with the Bank.
Notwithstanding any other provision of this Agreement or of any other
agreement, understanding or compensation plan, Bank shall not pay, and
Executive shall not receive, any payment which would be deemed (taking into
account all payments, rights and benefits whether or not under this
Agreement) to be an "excess parachute payment" under Section 280G of the
Internal Revenue Code of 1986, as amended, and the amount of the payment
hereunder shall be reduced to the extent necessary to ensure that Executive
receives no "parachute payment" in connection with such Change of Control.
(a) "Change of Control" shall be deemed to have occurred if:
(1) a Person (as defined below) beneficially
owns (i.e. directly, indirectly or acting through
one or more other persons owns, controls or has
power to vote) 25% or more of any class of voting
securities of Bank;
(2) a Person controls in any manner the election of
more than 20% of the directors of Bank; or
(3) the Board of Directors of Bank determines that a
Person directly or indirectly exercises a
controlling influence over the management or
policies of Bank.
A "Change of Control" shall be deemed not to have occurred if (A) such
event is mandated or directed by a regulatory body having jurisdiction over
the Bank's operations; or (B) it occurs pursuant to the terms of a plan for
the acquisition of the capital stock of the Bank by a newly formed bank
holding company if in the consummation of such plan the shareholders of
Bank will receive, pro rata, all of the common stock of such bank holding
company; unless, in such conversion, a Person satisfies sub-paragraph (1),
(2) or (3) above.
A "Person" shall include a natural person, corporation, or other
entity. When two or more persons act as a partnership, limited partnership,
syndicate, or other group for the purpose of acquiring, holding or
disposing of Bank capital stock, such partnership, syndicate or group shall
be considered a Person. Beneficial ownership shall be determined under the
then current provisions of Securities Exchange Act Rule 13d-3; Reg. Section
240. 13d-3, or their successor provision(s).
This Section 11 shall survive and continue beyond the term of
employment set forth in Section 1 for as long as the Executive is a full-
time officer of the Bank.
12. Regulatory Restrictions. Notwithstanding any provision to the contrary in
this Agreement, the Bank shall not be required under this Agreement to
continue Executive in his position(s) at the Bank, or to make any payments
to Executive, if the regulatory authorities having jurisdiction over the
Bank order the Executive's removal from the Bank, or if such regulations
determine that any payment would constitute an illegal "excess parachute"
payment under 12 U.S.C. Section 1828(k) and regulations promulgated
thereunder, or an "unsafe or unsound banking practice" pursuant to 12
U.S.C. Section 1818(b).
13. Arbitration. Any dispute whatsoever relating to the interpretation,
validity or performance of this Agreement, or any other dispute arising out
of this Agreement which cannot be resolved by any party upon thirty days'
written notice to the other party shall be settled by arbitration in the
City of Norwalk, Connecticut, in accordance with the rules then prevailing
of the American Arbitration Association, and the judgment upon the award
rendered by the arbitrators may be entered in any court of competent
jurisdiction. It is the purpose of this Agreement, and the intent of the
parties hereto to make the submission to arbitration of any dispute or
controversy arising out of this Agreement, as set forth hereinabove, an
express condition precedent to any legal or
equitable action or proceeding of any nature whatsoever.
14. General Provisions.
(a) All notices required by this Agreement shall be in writing and shall
be sufficiently given if delivered or mailed by registered or
certified mail, return receipt requested, to the parties at their
respective addresses set forth below. Any party may specify a
different address by written notice to the other, in accordance with
this Section. All notices shall be deemed to have been given as of the
date so delivered or mailed. To the Bank
Norwalk Savings Society
00 Xxxx Xxxxxx
Xxxxxxx, XX 00000
To Executive:
Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
(b) Except insofar as Executive may be subject to general policies adopted
by the Bank from time to time, this Agreement contains the entire
agreement between the parties, and there are no other representations,
warranties, conditions or agreements relating to the subject matter of
this Agreement.
(c) The waiver by any party of any breach or default of any provision of
this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
(d) This Agreement may not be changed orally but only by an agreement in
writing duly executed on behalf of the party against which enforcement
of any waiver, change, modification, consent or discharge is sought.
(e) This Agreement shall be binding upon and inure to the benefit of the
Bank and Executive and their respective successors, assigns, heirs and
legal representatives. Insofar as Executive is concerned, this
Agreement is personal and Executive's duties under it shall not be
assigned by Executive.
(f) 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.
(g) This Agreement may be executed in one or more counterparts, all of
which taken together shall
constitute one and the same instrument.
(h) This Agreement shall be construed pursuant to and in accordance with
the laws of the State of Connecticut.
(i) Wherever used in this Agreement, the masculine, feminine and neuter
pronouns shall be fully interchangeable, and the singular shall
include the plural where the context so requires and vice versa.
(j) If any term or provision of this Agreement is held or deemed to be
invalid or unenforceable, in whole or in part, by a court of competent
jurisdiction, such term or provision shall be ineffective to the
extent of such invalidity or unenforceability without rendering
invalid or unenforceable the remaining terms and provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
NORWALK SAVINGS SOCIETY
By
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Chairman of Board of Directors
EXECUTIVE
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Xxxxxx X. Xxxxxxxxx
