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