EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement, dated October 23, 2003 (this "Agreement"), is
between PATRIOT NATIONAL BANK, a national banking association with headquarters
located in Stamford, Connecticut (the "Bank"), PATRIOT NATIONAL BANCORP, INC., a
Connecticut corporation ("Bancorp") and Xxxxxxx X. Xxxxxx of Danbury,
Connecticut (the "Executive").
RECITALS
WHEREAS, the Executive, the Bank and Bancorp desire that the Executive be
employed as President and Chief Executive Officer of the Bank and as President
of Bancorp. The Executive and the Bank desire to enter into this 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 further incentive to Executive in the
discharge of his responsibilities to the Bank; and (3) to define Executive's
duties and terms of employment;
WHEREAS, 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 goodwill and rapport with certain customers of the Bank. The use by
Executive of this information, goodwill 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 October 23,
2003 and continuing through December 31, 2006, unless subsequently extended or
sooner terminated as provided in this Agreement (the "Employment Period"). The
Bank further agrees to initiate discussions with Executive promptly following
the second anniversary of the date hereof for the purpose of determining whether
a further extension to this Agreement is acceptable to the parties hereto, it
being understood that neither party shall have any binding obligation to further
extend the Employment Period.
2. DUTIES.
(a) During the Employment Period, Executive shall perform the duties and
exercise the powers relating to the office of the President and Chief Executive
Officer of the Bank and the President of Bancorp, including all duties assigned
to Executive by the respective Boards of Directors of the Bank and Bancorp (the
"Boards of Directors"). Unless otherwise specifically indicated, the term "Board
of Directors" as used herein shall mean the Board of Directors of the Bank. All
duties assigned shall be consistent with the customary duties of the
above-described offices at a national bank. The
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Executive will be a director of Bancorp and the Bank, and Vice Chairman of the
Board of Directors of Bancorp. In the event Executive is not so elected as a
director of Bancorp and the Bank and as a Vice Chairman of Bancorp during any
relevant period, Executive shall have the right to terminate this Agreement
without any further duties or obligations on the part of Executive hereunder.
(b) During the Employment Period, Executive shall devote his entire
business time, best efforts and ability to the business of the Bank and Bancorp,
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 Bancorp and shall do all that is reasonably in his power to promote,
develop and extend the business of the Bank and Bancorp. Notwithstanding the
foregoing, it is understood that the Executive shall be permitted to continue to
serve on various civic and non-profit organizations approved by the Bank and
Bancorp.
3. COMPENSATION AND BENEFITS.
(a) BASE SALARY. The Bank shall pay Executive as compensation for his
services during the Employment Period an annual base salary of Two Hundred
Twenty-five Thousand Dollars ($225,000.00) for the first twelve (12) month
period, Two Hundred Forty Thousand Dollars ($240,000.00) for the second twelve
(12) month period, Two Hundred Sixty Thousand Dollars ($260,000.00) for the
third twelve (12) month period, and at an annualized rate of Two Hundred Sixty
Thousand Dollars ($260,000.00) for the remaining period ending December 31, 2006
(the "Base Salary"). Salary payments shall be made in equal installments
consistent with the Bank's standard payroll practices for its officers. The Base
Salary shall be reviewed by the Board of Directors each year during the
Employment Period and set by the Board of Directors in an amount not less than
the stated contract salary; any increase in Base Salary in excess of the stated
contract may take the form of a contingent increase based upon the achievement
of articulated personal or corporate goals, or both, at the discretion of the
Board of Directors.
(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, unless approved in writing by the Chairman of the Board
of the Directors.
(d) CASH INCENTIVE COMPENSATION. The Board of Directors, in its sole
discretion, may authorize the payment of special cash incentive compensation to
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Executive from time to time in excess of the amount stated in any documented
regular cash incentive plans. Any such special payment of incentive compensation
will not set a precedent requiring or suggesting that similar incentive
compensation will be paid in the future. The Executive shall be entitled to
participate in any Profit Sharing Plan or any additional compensation plan
adopted by the Board of Directors and generally available to the officers and/or
employees of the Bank. In the event that the Executive's profit share payout
percentage is reduced to a level below any other member of senior management of
the Bank, the Executive shall have the right to terminate this Agreement without
any further duties or obligations on the part of Executive hereunder, and in
such event Executive shall not be entitled to any termination payment under
Section 5 hereof.
(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 under the same rules or restrictions 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 PLANS. During the Employment Period, as to any stock
incentive, stock option, or stock compensation plan adopted by the Board of
Directors, the Executive will be entitled to participate therein to the extent
determined by the Board of Directors in its reasonable discretion. In addition,
notwithstanding the expiration of the Executive's Employment Agreement dated
October 23, 2000 (as amended) (the "2000 Employment Agreement"), the Executive
shall continue to be entitled to all of the stock grant and stock option
benefits set forth in Section 3(g) thereof, and the vesting of such stock grants
and stock options and the effect thereon of any termination of the Executive's
employment shall continue to be governed by the 2000 Employment Agreement.
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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 subsection (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 that 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
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.
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(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 within thirty (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 1-1/2 years (18 months) Base Salary,
calculated at Executive's then annual Base Salary, whichever is greater.
In addition, if Executive is terminated without cause, the Bank shall
either continue to carry Executive at no additional 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.
The provisions of this Section 5 shall apply only to termination of this
Agreement prior to a Change of Control (as hereinafter defined). Termination of
this Agreement following the occurrence of Change of Control shall be governed
by Section 11 hereof.
(c) The Executive shall have the right to terminate this Agreement
without any further duties or obligations on his part in the event that any
person other than Xxxxxx Xx Xxxx holds the position of Chairman of the Board of
the Bank or Bancorp or Chief Executive Officer of Bancorp, or in the event that
Xxxxxx Xx Xxxx and his family members or trusts reduce their beneficial
ownership of Bancorp's common stock to an amount less than twenty-five percent
(25%) of the total outstanding common stock of Bancorp. In the event of such a
termination, Executive shall not be entitled to any termination payment.
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(d) IMMEDIATE CESSATION OF EMPLOYMENT. In the event Executive's
employment terminates pursuant to subparagraphs (b) or (c) above, 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 subparagraph (b).
(e) SURVIVAL. Anything in this Agreement to the contrary
notwithstanding, the provisions of Sections 6, 7, 8 and 9, shall survive the
termination of Executive's employment with the bank.
6. NON-COMPETITION AGREEMENT AND NON-INTERFERENCE COVENANTS.
(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 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"). In addition,
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 cause to be solicited or otherwise actively interfere with
any of the Bank's contracts or relationships with any independent contractor,
customer, client or supplier of the Bank. It shall not constitute a violation of
this Section 8 if customers, clients or employees follow Executive to his new
place of employment without any independent solicitation on the part of
Executive (or caused by Executive) or if such customers or clients respond to
any mass advertising solicitation conducted independently by Executive's new
employer without input from Executive. Notwithstanding the foregoing, the
provisions of this Section 6 (a) shall not apply in the event that (i) the
Executive's employment is terminated by the Bank other than for cause or (ii)
the Executive is employed by the Bank for the entire term hereof and the Bank
and the Executive fail to agree, at least 6 months prior to the end of such
term, as to the terms and conditions for a new contract or renewal hereof,
provided, however, that the
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provisions of this Section 6(a) shall continue to apply even in the event of the
circumstances described in subsections (i) and (ii) immediately above in the
event that the Bank determines, in its sole discretion, to pay to the Executive
an amount equal to seventy-five percent (75%) of the Executive's total cash
compensation in respect of the immediately preceding twelve month period
(excluding stock related payments), such payment to be made to the Executive
within ninety (90) days of the end of this Agreement, in which event the
Executive shall then be subject to the restrictions of the aforesaid Section
6(a). In either of the foregoing events, however, the terms of Section 7 hereof
shall continue to be binding upon the Executive. In addition, and
notwithstanding the foregoing, the non-compete, non-solicitation and
non-interference provisions of this Section 6(a) shall apply to the Executive in
the event the Executive receives the Change of Control Amount pursuant to
Section 10 herein, and in such situation only, the "Restricted Area" shall be
(i) the towns identified in Section 6(b) below, (ii) any town or city in which
the Bank has an office or branch as of the time of the Change of Control, and
(iii) Westchester, Nassua and Suffolk Counties, New York. Upon any violation of
the aforesaid provisions by the Executive, the Executive shall repay the Change
of Control Amount to the Bank.
(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 and shall include, without limitation, being
employed by any banking institution which has a branch or other place of
business in the Restricted Area; (ii) except as otherwise provided in Section
6(a) above, the term "Restricted Area" shall mean the following towns:
Greenwich, Stamford, Darien, New Canaan, Norwalk, Wilton and Westport and
Westchester, Nassua and Suffolk Counties, New York.
(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 to 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
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develop respecting such Confidential Information in trust for the sole benefit
of the Bank and its successors and assigns.
8. 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.
9. BREACH BY EXECUTIVE. It is expressly understood, acknowledged and agreed by
Executive that: (i) the restrictions contained in Sections 6, 7 and 8 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.
10. CHANGE OF CONTROL. If there is a "Change of Control" of the Bank (as
defined below) (i) during any time Executive is a full-time executive of the
Bank, or (ii) within six (6) months following Executive's termination of
employment other than (A) for cause, or (B) by reason of the Executive's death
or disability, the Executive shall be entitled to receive a change of control
payment (the "Change of Control Amount") in consideration of services previously
rendered to the Bank. The Change of Control Amount shall be made as a lump sum
cash payment equal to two (2) times the greater of the following: (A) the
Executive's then annual Base Salary; (B) the Executive's cash compensation (the
"Cash Compensation") from the Bank for services rendered for the last full
calendar year immediately preceding the Change of Control; or (C) the
Executive's average annual Cash Compensation with respect to the two (2) most
recent taxable years ending before the date on which the Change of Control
occurs.
The Cash Compensation referred to above shall include the amount of Base
Salary and any cash incentive compensation paid to Executive for services
rendered for the time period in question, as such compensation is described in
Sections 3(a) and 3(d) hereof, including any and all of said amounts as may have
been deferred by Executive under deferral plans, if any, of the Bank, and shall
include long-term compensation which, by its terms, is accelerated upon a Change
of Control, or if not, shall by this Agreement be so accelerated and determined
as the present value of any long-term cash incentive compensation previously
awarded to Executive but not yet paid, measured at
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the time of award with the assumption that the award would be 100% earned over
the performance period. For purposes of computing the Change of Control Amount,
Cash Compensation will NOT include any cash received in lieu of stock options or
restricted stock, provided however, that the Executive shall be entitled to
receive such cash in lieu of amounts to the extent otherwise payable under
Section 3(g)(i) of the 2000 Employment Agreement. Payment of the Change of
Control Amount under this Section 10 shall be in lieu of any amount due or
payable to the Executive under Sections 3 and 5 hereof. Payment under this
Section 10 shall be paid in full within 15 days following the date of the Change
of Control, provided, however, that such payment may be deferred for such period
(not to exceed 90 days) following the date of the Change of Control as the Bank
requests the Executive to continue to provide services to the Bank, if requested
by the Bank. If the Executive voluntarily terminates employment with the Bank
prior to the date (not more than 90 days following the date of the Change of
Control) specified by the Bank, the Executive shall forfeit the Change of
Control Payment. The Change of Control Payment shall not be reduced by any
compensation which the Executive may receive from other employment with another
employer should Executive's employment with the Bank terminate.
For purposes hereof, a "Change in Control" shall have occurred if:
(1) Any "person" other than (i) Xxxxxx XxXxxx and his family members or
family trusts, or (ii) any trustee or other fiduciary holding securities under
an employee benefit plan of the Bank within the meaning of Section 14(d) of the
Securities Exchange Act of 1934 (the "Act"), by merger or otherwise, becomes the
"beneficial owner" as defined in Rule 13d-3 thereunder, directly or indirectly,
of more than 25% of the Bancorp's Common Stock;
(2) any "person" other than (i) Xxxxxx XxXxxx and his family members or
family trusts; or (ii) any trustee or other fiduciary holding securities under
an employee benefit plan of the Bank, acquires by proxy or otherwise the right
to vote more than 25% of Bancorp's Common Stock for the election of directors,
other than solicitation of proxies by the Incumbent Board (as hereinafter
defined), for any merger or consolidation of the Bank or for any other matter or
question;
(3) Bancorp's stockholders have approved the sale of all or
substantially all of the assets of the Bank; or
(4) the Board of Directors determines that a person other than Xxxxxx
XxXxxx and his family members or family trusts directly or indirectly exercises
a controlling influence over the management or policies of the 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 Bancorp by a newly formed bank holding
company if in the consummation of such plan the shareholders of Bancorp will
receive, pro rata, all of the common stock of such bank
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holding company; unless, in such transaction, a Person satisfies sub-paragraph
(1), (2), or (4) 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 Bancorp
capital stock, such partnership, syndicate or group shall be considered a
Person. Beneficial ownership shall be determined under the then current
provisions of Rule 13d-3 of the Securities Exchange Act of 1934, as amended,
Reg. Section 240.13d-3, or their successor provision(s). The filing of a Form
F-11A by a Person shall not be deemed a Change of Control.
If, after a Change of Control of the Bank, the Executive incurs any fees
and expenses of counsel to enforce this Agreement, the Bank agrees to pay such
fees and expenses to Executive. The Executive's choice of counsel and his
decision to retain counsel shall be in his reasonable discretion, provided any
such fees and expenses must be reasonable and shall be payable only if the
Executive prevails on the merits of his claim.
Notwithstanding any other provision hereof, in the event that any payment
or benefit received or to be received by the Executive in connection with a
Change in Control of the Bank or the termination of the Employment Period
(whether pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Bank, any person whose actions result in a Change in
Control or any person affiliated with the Bank or such person (collectively with
the Change of Control Amount, "Total Payments")) would not be deductible (in
whole or part) as a result of Section 280G of the Code, by the Bank, an
affiliate or other person making such payment or providing such benefit, the
Change of Control Amount shall be reduced until no portion of the Total Payments
is not deductible, or the Change of Control Amount is reduced to zero. For
purposes of this limitation (a) no portion of the Total Payments the receipt or
enjoyment of which the Executive shall have effectively waived in writing prior
to the date of payment of the Change of Control Amount shall be taken into
account; (b) no portion of the Total Payments shall be taken into account which
in the opinion of tax counsel selected by the Bank's independent auditors and
acceptable to the Executive does not constitute a "parachute payment" within the
meaning of Section 280G(b)(2) of the Code; (c) the Change of Control Amount
shall be reduced only to the extent necessary so that the Total Payments (other
than those referred to in clauses (1) or (2)) in their entirety constitute
reasonable compensation for services actually rendered within the meaning of
Section 280G(b)(4) of the Code or are otherwise not subject to disallowance as
deductions, in the opinion of the tax counsel referred to in clause (b); and (d)
the value of any non cash benefit or any deferred payment or benefit included in
the Total Payments shall be determined by the Bank's independent auditors in
accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
11. 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
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authorities having jurisdiction over the Bank order the Executive's removal from
the Bank, or if such regulations determine that any payment xxxx 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).
12. 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 (30) days'
written notice to the other party shall be settled by arbitration in the City of
Stamford, 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.
13. 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:
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX
Attention: Chairman of the Board of Directors
To Executive:
Xxxxxxx X. Xxxxxx
00 Xxxxx Xxxxx
Xxxxxxx, XX
(x) 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.
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(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 of 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.
PATRIOT NATIONAL BANK
By
-------------------------------------
Chairman of Board of Directors
PATRIOT NATIONAL BANCORP, INC.
By:
--------------
-----------------
Xxxxxxx X. Xxxxxx
Executive
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