EXHIBIT 10.6
EMPLOYMENT AGREEMENT WITH XXXXXXXXXXX X. XXXXX
GRANITE BANK
EMPLOYMENT AGREEMENT
This Agreement is made effective as of the 31st day of October,
1997 by and between Granite Bank, a New Hampshire bank (the "Bank"),
with its principal administrative office at 000 Xxxx Xxxxxx, Xxxxx, Xxx
Xxxxxxxxx 00000-0000, and Xxxxxxxxxxx X. Xxxxx (the "Executive"). Any
reference to "Company" herein shall mean Granite State Bankshares, Inc.,
the stock holding company parent of the Bank or any successor thereto.
WHEREAS, the Bank and Company entered into an Agreement and Plan
of Reorganization (the "Merger Agreement") with Primary Bank on April
29, 1997; and
WHEREAS, Executive is willing to forego payment under the
Employment Agreement currently in effect by and between Primary Bank and
Executive as a result of the Merger Agreement; and
WHEREAS, the Bank wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank
on a full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided,
the parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to
serve as President of the Bank. The Executive shall render
administrative and management services to the Bank such as are
customarily performed by persons in a similar executive capacity.
During said period, Executive also agrees to serve, if elected, as an
officer and director of any subsidiary or affiliate of the Bank.
Pursuant to the Merger Agreement, and as of the date hereof, Executive
shall be elected to the Board of Directors of the Bank and the Company.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement
shall begin as of the date first above written and shall continue for a
period of thirty-six (36) full calendar months thereafter. During said
term the Executive shall perform the normal and customary duties
associated with the position of President. The board of directors of
the Bank ("Board") will review the Agreement and the Executive's
performance annually for the purpose of determining whether to extend
the Agreement and, unless the Board determines that there exists some
basis not to extend this Agreement, this Agreement shall be extended for
an additional year, so that the remaining term shall be thirty-six (36)
months. Nothing in this provision shall be interpreted as restricting
the Bank's right to remove Executive for Cause in accordance with
Section 7 of this Agreement, or to remove Executive for any reason and
pay Executive the benefits set forth in Section 4 or 5, as applicable.
(b) During the period of his employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods,
and reasonable leaves of absence, Executive shall devote substantially
all his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder including activities and services
related to the organization, operation and management of the Bank;
provided, however, that, with the approval of the Board, as evidenced by
a resolution of such Board, from time to time, Executive may serve, or
continue to serve, on the boards of directors of, and hold any other
offices or positions in, business companies or business organizations,
which, in such Board's judgment, will not present any conflict of
interest with the Bank, or materially affect the performance of
Executive's duties pursuant to this Agreement (it being understood that
membership in social, religious, charitable, educational, or similar
organizations does not require Board approval pursuant to this Section
2(b)).
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall
constitute the salary and benefits paid for the duties described in
Section 2(b). The Bank shall pay Executive as compensation a salary of
not less than $205,000 per year ("Base Salary"). Such Base Salary shall
be payable bimonthly. During the period of this Agreement, Executive's
Base Salary shall be reviewed at least annually. Such review shall be
conducted by a Committee designated by the Board, and the Board may
increase, but not decrease, Executive's Base Salary (any increase in
Base Salary shall become the "Base Salary" for purposes of this
Agreement). In addition to the Base Salary provided in this Section
3(a), the Bank shall provide Executive with all such other benefits as
are provided uniformly to full-time officers of the Bank. Base salary
shall include any amounts of compensation deferred by Executive under a
qualified plan maintained by the Bank.
(b) Executive will be entitled to participate in or receive
benefits under any employee benefit plans including but not limited to,
retirement plans, supplemental retirement plans, pension plans,
profit-sharing plans, health-and-accident plans, medical coverage or any
other employee benefit plan or arrangement made available by the Bank in
the future to its senior executives and key management employees,
subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements. Executive will
be entitled to incentive compensation and bonuses as provided in any
plan of the Bank in which Executive is eligible to participate. Nothing
paid to the Executive under any such plan or arrangement will be deemed
to be in lieu of other compensation to which the Executive is entitled
under this Agreement. The Bank shall provide Executive with an annual
allowance toward any dues, initiation fees, and/or assessments required
to maintain the Executive as a member of a country club in the Bank's
market area, and shall provide him with the use of a Bank-owned, late
model automobile (as to which the Bank pay, or reimburse Executive for,
all maintenance costs related to usage for business purposes).
(c) In addition to the Base Salary provided for by this Section
3(a), the Bank shall pay or reimburse Executive for all reasonable
travel and other reasonable expenses incurred by Executive performing
his obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to
time determine in accordance with standards set by the Board of
Directors.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
The provisions of this Section shall in all respects be subject to
the terms and conditions stated in Sections 9 and 10.
(a) The provisions of this Section shall apply upon the
occurrence of an Event of Termination (as herein defined) during the
Executive's term of employment under this Agreement. As used in this
Agreement, an "Event of Termination" shall mean and include any one or
more of the following:
(i) the termination by the Bank of Executive's full-time
employment hereunder for any reason other than (A) Disability or
Retirement, as defined in Section 6 hereof, or Death, (B) following a
Change in Control, as defined in Section 5(a) hereof, or (C) Termination
for Cause as defined in Section 7 hereof; or
(ii) Executive's resignation from the Bank's employ, upon any:
(A) failure to elect or reelect or to appoint or
reappoint Executive as President during the term of this
Agreement in accordance with Section 2(a) of this Agreement,
(B) without Executive's written consent, a material change
in Executive's function, duties, or responsibilities, which
change would cause Executive's position to become one of
lesser responsibility, importance, or scope from the
position and attributes thereof described in Section 1,
hereof,
(C) a relocation of Executive's principal place of
employment by more than 50 miles from its location at the
effective date of this Agreement, or a material reduction in
the benefits and perquisites to the Executive from those
being provided as of the effective date of this Agreement,
(D) liquidation or dissolution of the Bank or Company
other than liquidations or dissolutions that are caused by
reorganizations that do not affect the status of Executive,
or
(E) breach of this Agreement by the Bank.
Upon the occurrence of any event described in clauses (ii) (A),
(B), (C), (D) or (E), of this Section 4(a), Executive shall have the
right to elect to terminate his employment under this Agreement by
resignation upon thirty (30) days prior written notice which must be
given by Executive within a reasonable period of time not to exceed four
calendar months after the initial event giving rise to said right to
elect, which shall be deemed to constitute an "Event of Termination."
Other than as set forth in the preceding sentence, the voluntary
resignation of Executive from the Bank shall not constitute an Event of
Termination.
(b) Upon the occurrence of an Event of Termination, on the Date
of Termination, as defined in Section 8, the Bank shall pay Executive,
or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or
liquidated damages, or both, a sum equal to the Base Salary due for the
remaining term of the Agreement; provided however, that if the Bank is
not in compliance with its minimum capital requirements or if such
payments would cause the Bank's capital to be reduced below its minimum
capital requirements, such payments shall be deferred until such time as
the Bank is in capital compliance. At the election of the Executive,
which election is to be made on an annual basis during the month of
January, and which election is irrevocable for the year in which made
and upon the occurrence of an Event of Termination, any payments shall
be made in a lump sum or paid monthly during the remaining term of this
Agreement following the Executive's termination. In the event that no
election is made, payment to the Executive will be made on a monthly
basis during the remaining term of this Agreement.
(c) Upon the occurrence of an Event of Termination, the Bank, in
its sole discretion, shall cause Executive to be continued under the
Bank's existing employee benefit plans, life, medical, dental and
disability coverage substantially identical to the coverage maintained
by the Bank for Executive prior to his termination, except to the extent
such coverage may be changed in its application to all Bank employees,
or if coverage under the Bank's existing plans is unavailable, the Bank
shall pay the cost of providing Executive with substantially equivalent
covererage. Such coverage shall cease upon the expiration of the
remaining term of this Agreement, or upon the date that Executive
obtains employment.
(d) Upon the occurrence of an Event of Termination, the
Executive will be entitled to receive benefits due him and accrued
pursuant to any retirement, incentive, profit sharing, bonus,
performance, disability or other employee benefit plan maintained by the
Bank.
(e) If it is determined that the Bank has breached the terms of
this Agreement, the only remedy to which Executive is entitled is to
receive the payments and benefits as set forth in this Section 4.
(f) Apart from the right granted to Executive to voluntary
resign as set forth in (a) above, Executive shall have the right upon
thirty (30) days written notice to the Bank to terminate the Agreement
("Voluntary Termination"). Such Voluntary Termination shall not be
deemed to constitute an Event of Termination as defined above; however,
Executive shall be entitled to receive a lump sum payment from the Bank,
upon the effective date of the Voluntary Termination, in an amount equal
to Base Salary.
5. CHANGE IN CONTROL
(a) No benefit shall be payable under this Section 5 unless
there shall have been a Change in Control of the Bank or Company, as set
forth below. For purposes of this Agreement, a "Change in Control" of
the Bank or Company shall mean an event of a nature that: (i) would be
required to be reported in response to Item 1(a) of the current report
on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or
15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or
(ii) results in a Change in Control of the Bank or the Company within
the meaning of the Change in Bank Control Act and the Rules and
Regulations promulgated by the Federal Deposit Insurance Corporation
("FDIC"), as in effect on the date hereof (provided, that in applying
the definition of change in control as set forth under the rules and
regulations of the FDIC, the Board shall substitute its judgment for
that of the FDIC); or (iii) without limitation such a Change in Control
shall be deemed to have occurred at such time as (a) any "Person" (as
the term is used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Bank or the
Company representing 20% or more of the Bank's or the Company's
outstanding securities except for any securities of the Bank purchased
by the Bank's employee stock ownership plan and trust; or (b)
individuals who constitute the Board on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof,
provided, however, that this sub-section (b) shall not apply if the
Incumbent Board is replaced by the appointment by a Federal banking
agency of a conservator or receiver for the Bank and, provided further
that any person becoming a director subsequent to the date hereof whose
election was approved by a vote of at least two-thirds of the directors
comprising the Incumbent Board or whose nomination for election by the
Company's stockholders was approved by the same Nominating Committee
serving under an Incumbent Board, shall be, for purposes of this clause
(b), considered as though he were a member of the Incumbent Board; or
(c) a plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or the Company in which the
Bank or the Company is not the resulting entity.
(b) If any of the events described in Section 5(a) hereof
constituting a Change in Control have occurred, Executive shall be
entitled to the benefits provided in paragraphs (c), (d) and (e) of this
Section 5 upon his subsequent termination of employment at any time
during the term of this Agreement (regardless of whether such
termination results from his dismissal, his voluntary resignation, or
his resignation at any time during the term of this Agreement following
any demotion, loss of title, office or significant authority or
responsibility, reduction in the annual compensation or benefits or
relocation of his principal place of employment by more than 50 miles
from its location immediately prior to the change in control), unless
such termination is because of his Death, Disability, Retirement or
termination for Cause.
(c) In addition, upon the occurrence of a Change in Control
followed by the Executive's termination of employment, the Bank shall
pay Executive, or in the event of his subsequent death, his beneficiary
or beneficiaries, or his estate, as the case may be, as severance pay or
liquidated damages, or both, a sum equal to the greater of the payments
due for the remaining term of the Agreement or three (3) times Base
Salary. At the election of the Executive, which election is to be made
on an annual basis during the month of January, and which election is
irrevocable for the year in which made and upon the occurrence of a
Change in Control, such payment may be made in a lump sum or on a pro
rata basis. In the event that no election is made, payment to the
Executive will be made on a monthly basis during the remaining term of
the Agreement.
(d) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Bank, in its sole discretion,
shall either (i) contribute the same amount as the Bank contributed
prior to such termination of employment towards the purchase for
Executive of, or (ii) cause to be continued for Executive under the
Bank's existing employee benefit plans, life, medical, dental and
disability insurance coverage substantially identical to the coverage
maintained by the Bank for Executive prior to his termination, except to
the extent that such coverage is changed in its application to all
employees (provided nothing herein shall be deemed to require the Bank
to contribute more towards such coverage than it contributed prior to
such termination of employment). Such coverage and payments shall cease
upon the expiration of thirty-six (36) months.
(e) Notwithstanding the preceding paragraphs of this Section 5,
if payments under this Agreement, together with any other payments
received or to be received by the Executive in connection with a Change
in Control would be deemed to include an "excess parachute payment"
pursuant to Section 280G of the Code, then benefits under this Agreement
shall be reduced (to not less than zero) to the extent necessary to
avoid the payment of an excess parachute payment by the Bank. The
Executive shall determine the allocation of such reduction among
payments to the Executive. The Bank shall be entitled to rely on
calculations provided by its independent auditors as to whether payments
to Executive would constitute excess parachute payments, and as to the
amount that payments are to be reduced to avoid any excess parachute
payment, which shall be binding on Executive.
6. TERMINATION UPON RETIREMENT, DISABILITY OR DEATH
Termination by the Bank of the Executive based on "Retirement"
shall mean termination in accordance with the Bank's retirement policy
or in accordance with any retirement arrangement established with
Executive's consent with respect to him. Upon termination of Executive
upon Retirement, Executive shall be entitled to all benefits under any
retirement plan of the Bank and other plans to which Executive is a
party.
Termination by the Bank of Executive's employment based on
"Disability" shall mean termination because of any physical or mental
impairment which qualifies Executive for disability benefits under the
applicable long-term disability plan maintained by the Bank, or if no
such plan applies, which would qualify Executive for disability benefits
under the federal social security system. In the event Executive is
unable to perform his duties under this Agreement on a full-time basis
for a period of six (6) consecutive months by reason of Disability, the
Bank may terminate this Agreement, provided that the Bank shall be
obligated to pay the Executive, as disability pay, a bi-monthly payment
equal to sixty percent (60%) of Base Salary on the effective date of
such termination. These disability payments shall commence on the
effective date of Executive's termination and will end on the earlier of
(i) the date Executive returns to the full-time employment of the Bank
in the same capacity as he was employed prior to his termination for
Disability; (ii) Executive's full-time employment by another employer;
(iii) Executive attaining the age of 65; (iv) the date on which
payments commence to the Executive under any long-term disability plan
maintained by the Bank; or (v) Executive's death. Provided, further,
that any amounts actually paid to Executive pursuant to any disability
insurance or other such similar program which the Bank has provided or
may provide on behalf of its employees or pursuant to any worker's
compensation or social security disability program shall reduce the
disability benefits to be paid to the Executive pursuant to this
paragraph.
Notwithstanding any other provision, this Agreement shall
terminate, and the Bank shall have no further obligation hereunder, upon
the death of the Executive.
7. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of
the Executive's personal dishonesty with respect to the Bank, gross
negligence, willful misconduct, any breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties,
intentional and willful violation of any law, governmental rule or
regulation (other than traffic violations and regulations that do not
adversely affect the Bank, the Company, or their employees, or similar
offenses) or final cease-and-desist order, or material breach of any
provision of this Agreement. In determining gross negligence, the acts
or omissions shall be measured against standards generally prevailing in
the savings institutions industry. For purposes of this paragraph, no
act or failure to act on the part of Executive shall be considered
"willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the Executive's action or
omission was in the best interest of the Bank. Notwithstanding the
foregoing, Executive shall not be deemed to have been Terminated for
Cause unless and until there shall have been delivered to him a copy of
a resolution duly adopted by the affirmative vote of not less than a
majority of the members of the Board at a meeting of the Board called
and held for that purpose (after reasonable notice, in writing, to
Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of conduct justifying Termination for Cause and
specifying the particulars thereof in detail. Notwithstanding the
foregoing, any such good faith determination by the Board as to
Termination for Cause shall not be determinative as to the existence of
Cause in any judicial proceeding. The Executive shall not have the right
to receive compensation or other benefits for any period after
Termination for Cause. Any stock options granted to Executive under any
stock option plan of the Bank, the Company or any subsidiary or
affiliate thereof shall be null and void effective upon Executive's
receipt of Notice of Termination for Cause pursuant to Section 8 hereof,
unless and until the matter is successfully resolved in the Executive's
favor, and such stock options shall become entirely null and void
effective upon a determination in arbitration that termination was for
cause.
8. NOTICE
(a) Any purported termination by the Bank or by Executive shall
be communicated by Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate 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 Executive's employment under the provision so indicated.
(b) "Date of Termination" shall mean (A) if Executive's
employment is terminated for Disability, thirty (30) days after a Notice
of Termination is given (provided that he shall not have returned to the
performance of his duties on a full-time basis during such thirty (30)
day period), and (B) if his employment is terminated for any other
reason, the date specified in the Notice of Termination (which, in the
case of a Termination for Cause, shall not be less than thirty (30) days
from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination
for Cause is given, the Executive notifies the Bank that a dispute
exists concerning the termination, the parties shall promptly proceed to
arbitration and the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of the
parties or by a binding arbitration award, and provided further that the
Date of Termination shall be extended by a notice of dispute only if
such notice is given in good faith and the party giving such notice
pursues the resolution of such dispute with reasonable diligence. The
Bank shall continue to make the payments and provide the benefits
specified under this Agreement until the dispute is settled by
arbitration. In the event that it is determined by arbitration that
"Cause" for termination did exist, Executive shall not be entitled to
any further compensation or benefits from the Bank under the Agreement,
and if it is determined in arbitration that his dispute of termination
for Cause was not taken in good faith, he shall return all cash payments
made to him during the pendency of dispute, without interest thereon.
Notwithstanding the foregoing, no stock options held by Executive shall
be exercised during the pendency of the dispute, and the period for
exercising any such stock options shall be extended through the
resolution of the dispute by arbitration. If it is ultimately determined
in arbitration that "Cause" for terminating Executive's employment did
not exist, the Executive shall be entitled to receive from the Bank the
remaining payments and benefits due under this Agreement determined as
of the date of Executive's receipt of Notice of Termination, with full
offset for payments and benefits received pending the resolution of the
dispute by arbitration.
9. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement
shall be subject to Executive's compliance with paragraph (b) of this
Section 9 and Section 10 during the term of this Agreement and during
any period during which payments are being made or benefits provided, to
Executive under this Agreement.
(b) Executive shall, upon reasonable notice, furnish such
information and assistance to the Bank as may reasonably be required by
the Bank in connection with any litigation in which it or any of its
subsidiaries or affiliates is, or may become, a party.
10. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder as
a result of which the Bank is paying Executive benefits under Section 4,
Executive agrees not to compete with the Bank and/or the Company for a
period of one (1) year following such termination in any city, town or
county in which the Bank and/or the Company has an office or has filed
an application for regulatory approval to establish an office,
determined as of the effective date of such termination, except as
agreed to pursuant to a resolution duly adopted by the Board. Executive
agrees that during such period and within said cities, towns and
counties, Executive shall not work for or advise, consult or otherwise
serve with, directly or indirectly, any entity whose business materially
competes with the depository, lending or other business activities of
the Bank and/or the Company. The parties hereto, recognizing that
irreparable injury will result to the Bank and/or the Company, its
business and property in the event of Executive's breach of this Section
10(a) agree that in the event of any such breach by Executive, the Bank
and/or the Company may be entitled, in addition to any other remedies
and damages available, to an injunction to restrain the violation hereof
by Executive, Executive's partners, agents, servants, employers,
employees and all persons acting for or with Executive. Executive
represents and admits that Executive's experience and capabilities are
such that Executive can obtain employment in a business engaged in other
lines and/or of a different nature than the Bank and/or the Company, and
that the enforcement of a remedy by way of injunction will not prevent
Executive from earning a livelihood. Nothing herein will be construed
as prohibiting the Bank and/or the Company from pursuing any other
remedies available to the Bank and/or the Company for such breach or
threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of
the business activities and plans for business activities of the Bank
and affiliates thereof, as it may exist from time to time, is a
valuable, special and unique asset of the business of the Bank.
Executive will not, during or after the term of his employment, disclose
any knowledge of the past, present, planned or considered business
activities of the Bank or affiliates thereof to any person, firm,
corporation, or other entity for any reason or purpose whatsoever.
Notwithstanding the foregoing, Executive may disclose any knowledge of
banking, financial and/or economic principles, concepts or ideas which
are not solely and exclusively derived from the business plans and
activities of the Bank, and Executive may disclose any information
regarding the Bank or the Company which is otherwise publicly available.
In the event of a breach or threatened breach by Executive of this
Section 10, the Bank will be entitled to an injunction restraining
Executive from disclosing, in whole or in part, the knowledge of the
past, present, planned or considered business activities of the Bank or
affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part,
has been disclosed or is threatened to be disclosed. Nothing herein
will be construed as prohibiting the Bank from pursuing any other
remedies available to the Bank for such breach or threatened breach,
including the recovery of damages from Executive.
11. SOURCE OF PAYMENTS
All payments provided in this Agreement shall be timely paid in
cash or check from the general funds of the Bank. No special or
separate fund of the Bank shall be established and no other segregation
of assets of the Bank shall be made to assure payment. The Company
guarantees payment and provision of all amounts and benefits due
hereunder to Executive, and if such amounts and benefits due from the
Bank are not timely paid or provided by the Bank, such amounts and
benefits shall be paid or provided by the Company out of its general
funds. No special or separate fund of the Company shall be established
and no other segregation of assets of the Company shall be made to
assure payment.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
This Agreement contains the entire understanding between the
parties hereto and supersedes any prior employment agreement between the
Bank or any predecessor of the Bank and Executive, including the
Employment Agreement dated November 24, 1993 between Executive and
Peterborough Savings Bank (the "PSB Employment Agreement"). No
provision of this Agreement shall be interpreted to mean that Executive
is subject to receiving fewer benefits than those available to him
without reference to this Agreement. Executive agrees that no Event of
Termination nor a Change in Control occurred under the PSB Employment
Agreement and that no payments or benefits are due him under the PSB
Employment Agreement as a result of the Merger Agreement and the
transactions contemplated thereby.
13. NO ATTACHMENT
(a) Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, or similar process or
assignment by operation of law, and any attempt, voluntary or
involuntary, to affect any such action shall be null, void, and of no
effect.
(b) This Agreement shall be binding upon, and inure to the
benefit of, Executive and the Bank and their respective successors,
assigns and heirs.
14. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement, except by written
instrument of the party charged with such waiver or estoppel. No such
written waiver shall be deemed a continuing waiver unless specifically
stated therein, and each such waiver shall operate only as to the
specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that
specifically waived.
15. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part
of any provision, is held invalid, such invalidity shall not affect any
other provision of this Agreement or any part of such provision not held
so invalid, and each such other provision and part thereof shall to the
full extent consistent with law continue in full force and effect. In
the event of any conflict or discrepancies between any provision of the
Agreement and existing federal or state laws and/or regulations, such
laws and regulations shall prevail, and the Agreement shall be construed
to be consistent therewith.
16. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely
for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
17. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New
Hampshire but only to the extent not superseded by federal law.
18. ARBITRATION
Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration, conducted
before a panel of three arbitrators sitting in a location selected by
the Bank within fifty (50) miles from the location of the Bank, after
due consultation with Executive, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction;
provided, however, that Executive 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.
19. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant
to any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the Bank, provided that the dispute or
interpretation has been resolved in the Executive's favor.
20. INDEMNIFICATION
The Bank shall provide Executive (including his heirs, executors
and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense, and shall
indemnify Executive (and his heirs, executors and administrators) to the
fullest extent permitted under New Hampshire law against all expenses
and liabilities reasonably incurred by him in connection with or arising
out of any action, suit or proceeding in which he may be involved by
reason of his having been a director or officer of the Bank (whether or
not he continues to be a director or officer at the time of incurring
such expenses or liabilities), such expenses and liabilities to include,
but not be limited to, judgments, court costs and attorneys' fees and
the cost of reasonable settlements (such settlements must be approved by
the Board of Directors of the Bank). If such action, suit or proceeding
is brought against Executive in his capacity as an officer or director
of the Bank, however, such indemnification shall not apply to any
action, suit or proceeding relating to this Agreement and shall not
extend to matters as to which Executive is finally adjudged to be liable
for willful misconduct in the performance of his duties.
21. SUCCESSOR TO THE BANK
The Bank shall require any successor or assignee, whether direct
or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Company,
expressly and unconditionally to assume and agree to perform the Bank's
obligations under this Agreement, in the same manner and to the same
extent that the Bank would be required to perform if no such succession
or assignment had taken place.
SIGNATURES
IN WITNESS WHEREOF, the Bank has caused this Agreement to be
executed by their duly authorized officers, and Executive has signed
this Agreement, on the day and date first above written.
ATTEST: GRANITE BANK
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
_______________________ _________________________________
Secretary Xxxxxxx X. Xxxxx, Chief Executive
Officer
ATTEST: GRANITE STATE BANKSHARES, INC.
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
_______________________ _________________________________
Secretary Xxxxxxx X. Xxxxx, Chief Executive
Officer
WITNESS: EXECUTIVE:
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxxxxxxx X. Xxxxx
_______________________ _________________________________
