EXHIBIT 10.33
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EXECUTIVE CHANGE IN CONTROL AGREEMENT
NOT TO BE CONSTRUED AS AN EMPLOYMENT AGREEMENT
THE FIRST NATIONAL BANK OF LITCHFIELD
FIRST LITCHFIELD FINANCIAL CORPORATION
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx
WHEREAS, The First National Bank of Litchfield (the "Bank") and its
parent bank holding company, First Litchfield Financial Corporation (the
"Holding Company"), wish to continue to employ Xxxxxxx X. Xxxxxxx ("Employee")
as Senior Vice President and Chief Financial Officer of the Bank. The Bank and
the Holding Company expect that Employee's contributions and knowledge will
continue to be of significant benefit to the future growth and success of the
Bank;
WHEREAS, the Boards of Directors of the Bank and the Holding Company
recognize that a change in control of the Bank and/or the Holding Company may
occur and that the threat of such change in control may create uncertainty and
may result in the distraction or departure of key personnel to the detriment of
the Bank and Holding Company and their stockholders;
WHEREAS, the Boards have determined that appropriate steps should be
taken to reinforce and encourage the continued dedication of members of the
Bank's management, including Employee, to their assigned duties in the face of
potential circumstances involving the possibility of such a change in control;
NOW THEREFORE, in addition to one dollar ($1.00) and other good and
valuable consideration paid by the Bank to Employee and in order to induce
Employee to continue employment with the Bank and to continue to perform
Employee's duties in a manner which is in the best interests of the Bank, the
Bank and Holding Company hereby agree to provide Employee with certain benefits
in the event her employment with the Bank terminates or is reassigned subsequent
to a Change in Control (as defined in Section 2 hereof) under the circumstances
described below.
1. Term of Agreement; Employment Status. This Agreement shall take
effect when signed by all parties and shall remain in full force and effect
until June 1, 2003. All employees of Bank and Holding Company, including
Employee, are employees at will. The terms of this Agreement, therefore, do not
and are not intended to create either an express and/or implied contract of
employment with the Bank and/or the Holding Company. This Agreement simply
provides certain potential benefits to Employee in the event that a Change in
Control occurs prior to June 1, 2003 as hereinafter defined.
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2. Change in Control. No benefits shall be payable hereunder unless
prior to June 1, 2003 there shall have been a Change in Control as set forth
below, and thereafter within twenty-four (24) months of such Change in Control
Employee's employment with the Bank and/or its successor terminates or Employee
is reassigned in accordance with Section 3, below. For purposes of this
Agreement, a "Change in Control" shall mean any of the following:
(a) The acquisition of fifty percent (50%) or more of any
class of equity securities of the Holding Company by any person (or
persons working in concert) or entity after the date hereof;
(b) The acquisition of fifty percent (50%) or more of any
class of equity securities of the Bank by any person or entity other
than Holding Company;
(c) A merger, consolidation or reorganization to which the
Bank or the Holding Company is a party, if, as a result thereof,
individuals who were directors of the Bank or Holding Company,
immediately before such transaction shall cease to constitute a
majority of the Board of Directors of the surviving entity;
(d) A sale of all or substantially all of the assets of the
Bank or the Holding Company to another party;
(e) The assumption of all or substantially all of the deposits
of the Bank by another party other than the Federal Deposit Insurance
Corporation; or
(f) During any twenty-four (24) month period, individuals who
at the beginning of such period constitute the Board of Directors of
the Bank and the Holding Company, cease for any reason (other than
death or disability) to constitute at least a majority thereof unless
the election or the nomination for election by the stockholders of the
Bank and the stockholders of Holding Company, respectively, of each new
director was approved by a vote of at least a majority of the directors
of the Bank or of Holding Company as applicable, then still in office
who were directors of the Bank or the Holding Company, as applicable,
at the beginning of the period.
3. Termination Following Change in Control. If any of the events
described in Section 2 hereof constituting a Change in Control shall have
occurred, Employee shall be entitled to the benefits provided for in Section
4(a) hereof upon the termination or reassignment of her employment as a senior
executive officer of the Bank and/or its successor as provided in this Section
3, within twenty-four (24) months after such event, unless such employment is
terminated or reassigned: (i) by any regulatory authority (acting with proper
jurisdiction); or (ii) by the Board of Directors for cause; or (iii) because of
Employee's death, retirement or disability. Such benefits shall be reduced by
the amount of any severance paid to Employee by the Bank or its successor.
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(a) Retirement; Disability.
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(i) Termination of employment by the Bank based on retirement
shall mean the mandatory termination of employment in accordance with
the retirement policy of the Bank, including (at Employee's sole
election and as set forth in writing) early retirement, generally
applicable to its salaried employees or in accordance with any
retirement arrangement established with Employee's consent with respect
to Employee.
(ii) Termination of employment by the Bank based on disability
shall mean termination because of inability, as a result of incapacity
due to physical or mental illness, to perform the services required as
an employee for a period aggregating six (6) months or more within any
twelve (12) month period, or because Employee becomes or is deemed
disabled under any applicable policy providing disability insurance.
(b) Notice of Termination. The Bank agrees that in the event of
termination it will promptly furnish Employee with a written Notice of
Termination. Any purported termination of Employee shall be communicated by
written Notice of Termination to the Bank. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall include the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Employee's employment under the provision so indicated.
(c) Date of Termination. "Date of Termination" shall mean the date on
which a Notice of Termination is given; provided that, if within five (5) days
after any Notice of Termination is given, the party receiving such Notice of
Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
binding and final arbitration award or by a final judgment, order or decree of a
court of competent jurisdiction (the time for appeal therefrom having expired
and no appeal having been perfected).
(d) Reassignment. Reassignment shall mean a reduction in base
salary or an involuntary reassignment of Employee's duties, responsibilities, or
benefits inconsistent with those of a senior executive officer of a bank or the
involuntary relocation of Employee's primary duties and responsibilities to an
office or location greater than fifty (50) miles from Litchfield, Connecticut or
action which results in a significant worsening of the Employee's work
conditions (including, but not limited to, a significant change in employment
duties, responsibilities, required hours or otherwise).
4. Compensation Upon Termination or Reassignment.
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(a) If, within twenty-four (24) months after a Change in Control, as
defined in Section 2 hereof, shall have occurred, Employee's employment with the
Bank terminates or is reassigned as defined in Section 3 (except by an agency
acting with proper jurisdiction, or by a board of directors for cause or as a
result of death, retirement or disability), then the Bank and/or its successor
shall pay Employee within five (5) days after the Date of Termination an amount
equal to the sum of:
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(i) Two (2) years of Employee's annual compensation based upon
the most recent aggregate base salary paid to Employee in the twelve
(12) month period immediately preceding her termination or reassignment
less amounts previously paid to Employee from the date of Change in
Control; plus
(ii) Reasonable legal fees and expenses incurred by Employee
as a result of such termination or reassignment (including all such
fees and expenses, if any, incurred in contesting or disputing any such
termination or reassignment or in seeking to obtain or enforce any
right or benefit provided for by this Agreement).
(b) Employee shall not be required to mitigate the amount of any
payment provided for in this Section 4 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Section 4 be reduced by
any compensation earned by Employee as the result of employment by another
employer after the Date of Termination or Reassignment, or otherwise.
(c) It is the intention of the parties to this Agreement that no
payments by the Bank to or for Employee's benefit under this Agreement shall be
non-deductible to the Bank by reason of the operation of Section 280G of the
Internal Revenue Code. Accordingly, notwithstanding any other provision hereof,
if by reason of the operation of said Section 280G of the Internal Revenue Code,
any such payments exceed the amount which can be deducted by the Bank, the
amount of such payments shall be reduced to the maximum which can be deducted by
the Bank. To the extent that payments in excess of the amount which can be
deducted by the Bank have been made to and for Employee's benefit, they shall be
refunded with interest at the applicable rate provided under Section 1274(d) of
the Internal Revenue Code, or at such other rate as may be required in order
that no such payment to or for Employee's benefit shall be non-deductible
pursuant to Section 280G of the Internal Revenue Code. Any payments made
hereunder which are not deductible by the Bank as a result of losses which have
been carried forward by the Bank for Federal tax purposes shall not be deemed a
non-deductible amount for purposes of this Section 4(c).
5. Continuation of Insurance Benefits.
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Notwithstanding any other provision in this Agreement to the contrary,
the Bank and/or its successor shall maintain in full force and effect for
Employee's continued benefit, for the two (2) year period beginning upon a
Change in Control, all life insurance, medical, health and accident and
disability policies, plans, programs or arrangements which were in effect
immediately prior to the Change in Control.
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6. Successors; Binding Agreement.
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(a) The Bank and the Holding Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, acquisition of
assets or assumption of liabilities or otherwise) to all or substantially all of
the business and/or assets and/or deposits of the Bank, by agreement, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Bank would be required to perform it if no such
succession had taken place. Failure of the Bank and/or Holding Company to obtain
such agreement prior to the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle Employee to compensation from the
Bank in the same amount and on the same terms as he would be entitled to
hereunder if her employment had terminated as a result of a Termination or
Reassignment, as provided in Section 3 hereof, after a Change in Control, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used in
this Agreement, "Bank" shall mean the Bank as hereinbefore defined and any
successor to the business, assets and/or deposits as aforesaid which executes
and delivers the agreement provided for in this Section 6 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law.
(b) This Agreement shall inure to the benefit of and be enforceable by
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Employee should die
after any rights to receive the amounts contemplated hereby have accrued to
Employee but before such amounts have been paid, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to her devisee, legatee or other designee or, if there be no such
designee, to her estate.
7. Notices. All notices and other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered or mailed by United States registered mail, return receipt requested,
postage prepaid, addressed to the respective addresses set forth on the first
page of this Agreement, provided that all notices to the Bank and the Holding
Company shall be directed to the attention of the Board with a copy to the
Chairman of the Board of the Bank and the Chairman of the Board of the Holding
Company or to such other address as either party may have furnished to the other
in writing in accordance herewith, except that notice of change of address shall
be effective only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Employee and such other officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other or failure to comply with any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Connecticut and of the United States of America.
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9. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
11. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Litchfield, Connecticut, in accordance with the rules of the American
Arbitration Association then in effect. Notwithstanding the pendency of any such
dispute or controversy, the Bank will pay Employee promptly an amount equal to
her full scheduled compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and provide
Employee with all scheduled compensation, benefits and insurance plans in which
he was participating when the notice giving rise to the dispute was given, until
the dispute is finally resolved in accordance with Section 3 hereof. Amounts
paid under this Section 11 are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement. Judgment may be entered on the arbitrator's award in any court
having jurisdiction; provided, however, that Employee shall be entitled to seek
specific performance of her right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
Agreed to this 31st day of May, 2002 by and among Employee, The First
National Bank of Litchfield, and First Litchfield Financial Corporation.
THE FIRST NATIONAL BANK OF LITCHFIELD
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Its: President
Duly Authorized
EMPLOYEE
Signature: /s/ Xxxxxxx X. Xxxxxxx
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Printed Name: Xxxxxxx X. Xxxxxxx
FIRST LITCHFIELD FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Its: President
Duly Authorized
STATE OF CONNECTICUT )
: ss.: Litchfield
COUNTY OF LITCHFIELD )
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On this the 31st day of May, 2002, before me, the undersigned,
personally appeared Xxxxxx X. Xxxxxx, who acknowledged himself to be the
President of THE FIRST NATIONAL BANK OF LITCHFIELD, and that he as such
President, being authorized so to do, executed the foregoing instrument for the
purposes therein contained by signing his name.
In Witness Whereof, I hereunto set my hand.
/s/ Xxxxx X. Xxxxxxxxxxx
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Xxxxx X. Boehrenbach
Commissioner of the Superior Court/Notary Public
My Commission Expires: March 31, 2007
STATE OF CONNECTICUT
ss.: Litchfield
COUNTY OF LITCHFIELD
On this the 31st day of May, 2002, before me, the undersigned,
personally appeared Xxxxxx X. Xxxxxx, who acknowledged himself to be the
President of FIRST LITCHFIELD FINANCIAL CORPORATION, and that he as such
President, being authorized so to do, executed the foregoing instrument for the
purposes therein contained by signing his name.
In Witness Whereof, I hereunto set my hand.
/s/ Xxxxx X. Xxxxxxxxxxx
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Commissioner of the Superior Court/Notary Public
My Commission Expires: March 31, 2007
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STATE OF CONNECTICUT )
: ss.: Litchfield
COUNTY OF LITCHFIELD )
On this the 31st day of May, 2002, before me, the undersigned officer,
personally appeared Xxxxxxx X. Xxxxxxx, known to me or satisfactorily proven to
be the person signing the foregoing document and acknowledged that she executed
the same for the purposes therein combined as her free act and deed.
In Witness Whereof, I hereunto set my hand.
/s/ Xxxxx X. Xxxxx III
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Commissioner of the Superior Court/Notary Public
My commission expires March 31, 2007
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