Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into as of the 9th day of July, 2002 by and
between Beverly National Corporation, a Massachusetts corporation having its
principal place of business at 000 Xxxxx Xxxxxx in Xxxxxxx, Xxxxxxxxxxxxx 00000
("Company"), and Xxxxx Xxxxxxxx with a principal residence of 00 Xxxxxxxxx Xxxx
in Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000-0000 (the "Employee").
W I T N E S S E T H T H A T:
WHEREAS the Company wishes to employ the Employee as its President and as
the President of The Xxxxxxx National Bank, a wholly-owned subsidiary of the
Company (the "Bank"); and
WHEREAS the Employee desires to be so employed.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Term. The period of employment of the Employee under this Agreement
shall be deemed to commence as of August 1, 2002 and shall continue in effect
through July 31, 2005. On July 31, 2005 and on each subsequent anniversary
thereof, the term of this Agreement shall automatically extend for an additional
year unless, not later than the proceeding January 31st either party notifies
the other by written notice of his or its intent not to extend the same.
Notwithstanding the foregoing provisions of this Section 1, his employment shall
terminate in any event upon the Employee's attainment of age sixty-six (66) or,
if earlier, the normal retirement age provided in the Bank's retirement plan,
and the Employee may resign from, and terminate his employment by, the Company
at any time upon ninety (90) days prior written notice to the Company.
2. Capacity.
(a) At all times during the term hereof, the Company shall employ the
Employee as its President and Chief Executive Officer. In such capacity, the
Employee shall be assigned only such duties and tasks as are appropriate for a
person in the position of President and Chief Executive Officer, and he shall be
subject to the supervision of the Board of Directors of the Company. The Company
shall employee the Employee on full-time basis, and (subject to the last
sentence of this paragraph) the Employee shall devote his full time and
professional efforts to the performance of his duties as President of the
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Company and any office he may hold in each of its subsidiaries. It is the
intention of the Company and the Employee that the Employee shall have full
discretionary authority to control the day-to-day operations of the Company and
each subsidiary of the Company and to incur such obligations on behalf of such
entities as may be required in the ordinary course of their business. The
Company encourages participation by the Employee on community boards and
committees and in activities generally considered to be in the public interest,
but the Company shall have the right to approve the Employee's participation on
such other boards and committees as may conflict with the Company's own business
or demands upon the Employee's time.
(b) During the period of his employment by the Company the Employee
agrees to serve as President and Chief Executive officer of the Bank without
additional compensation, except for reimbursement for all reasonable
out-of-pocket expenses. In the event that during the term of his employment the
Employee is terminated as President and Chief Executive Officer of the Bank
involuntarily without Cause, as hereinafter defined (except that for such
purpose such definition shall refer to the Bank rather than the Company), the
Employee shall have the right to resign as President of the Company for Good
Reason, in which case he shall be entitled to the benefits set forth in Section
8(d).
(c) The Company represents that Employee has been duly elected a
director of the Company and of the Bank effective August 1, 2002.
(d) The Company agrees to propose to its shareholders at each Annual
Meeting of Shareholders during the term hereof for which he is otherwise
eligible, the reelection of the Employee as a Director of the Company, to vote
for the reelection of the Employee as a Director of the Bank and to cause
Employee to be employed as the President and Chief Executive officer of the
Company and the Bank.
3. Compensation and Benefits.
(a) Base Compensation. The Company shall pay to the Employee in equal
monthly installments a base annual salary in the amount of Two Hundred Thousand
Dollars ($200,000.00) Dollars. The base annual salary of the Employee shall be
adjusted upward from time to time in the sole discretion of the Company, in
which case such increased amount shall thereafter constitute the Employee's base
annual salary. It is the intention of the Company to compensate the Employee at
a level at least comparable to the compensation of persons employed in the
position of President and Chief Executive Officer of companies engaged in new
England in activities substantially similar to those of the Company and having
approximately the same combined gross assets as the Company and its
subsidiaries.
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(b) Benefits. At all times during the term of this Agreement, the
Company shall provide or cause to be provided to the Employee the benefits set
forth on Exhibit A to this Agreement, together with such other benefits as may
from time to time be provided generally for executive officers of the Company or
the Bank. The Employee shall maintain adequate records of all reimbursable
expenses necessary to satisfy reporting requirements of the Internal Revenue
Code and applicable Treasury regulations.
4. Non-Competition. At all times during which the Employee is employed by
the Company under this Agreement and for a period of one (1) year thereafter,
the Employee shall not, directly or indirectly, as an employee of any person or
entity (whether or not engaged in business for profit), individual proprietor,
partner, stockholder, director, officer, joint venturer, investor, lender or in
any other capacity whatever (otherwise than as holder of less than ten (10)
percent of any securities publicly traded in the market) compete within (i) the
City of Beverly, Massachusetts, or the Towns of Hamilton or Manchester,
Massachusetts, or (ii) municipalities contiguous to the City of Beverly,
Massachusetts, the Town of Hamilton, Massachusetts, or the Town of Manchester,
Massachusetts or (iii) any other Cities or Towns in which the Bank may locate
during the term of this Agreement, with the business of the Company or any of
its subsidiaries, as such businesses are constituted at any time during the term
of this Agreement. For purposes of this Section 4, the Employee's ownership of
or employment by an institution doing business in Beverly, Massachusetts,
Xxxxxxxx, Massachusetts, Manchester, Massachusetts, in municipalities contiguous
to Beverly, Hamilton or Manchester, Massachusetts or in such other Cities or
Towns, but having its principal place of business elsewhere, shall not
constitute competition hereunder so long as the Employee does not solicit
business in Beverly, Hamilton, or Manchester, in such contiguous municipalities,
or in such other Cities or Towns, as the case may be.
5. No Solicitation of Employees. At all times during which the Employee is
employed under this Agreement and for a period of one (1) year thereafter, the
Employee shall not, directly or indirectly, employ, attempt to employ, recruit
or otherwise solicit, induce or influence to leave his employment any employee
of the Company or its subsidiaries. This Section shall not apply to solicitation
by a future employer of Employee who takes such actions without the assistance
or consent of the Employee.
6. No Disclosure of Information. The Employee shall not at any time
divulge, use, furnish, disclose or make accessible to anyone other than the
Company or any of its subsidiaries any knowledge of information with respect to
confidential or secret data, procedures or techniques of the Company or any of
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its subsidiaries, provided, however, that nothing in this Section 6 shall
prevent the disclosure by the Employee of any such information which at any time
comes in to the public domain other than as a result of the violation of the
terms of this Section 6 by the Employee or which is otherwise lawfully acquired
by the Employee.
7. Termination of Employment. The employment of the Employee shall
terminate on the earliest to occur of the following dates:
(a) The expiration of the term hereof as provided in Section 1 hereof or
as from time to time extended;
(b) The Employee's resignation from the Company or the death or
disability of the Employee;
(c) Upon the election of the Company, for Cause, as hereinafter defined,
after ten (10) business days' prior written notice to the Employee and by an
affirmative vote of not less than three fourths (3/4) of the entire Board of the
Company at a meeting held for such purpose at which the Employee shall be
granted an opportunity to be heard, for Cause, as hereinafter defined. For
purposes of this Agreement, the Company shall be deemed to have "Cause" to
terminate the employment of the Employee under this Agreement only if:
(i) The Employee is convicted by a court of competent jurisdiction
of any criminal offense involving dishonesty or breach of trust;
(ii) The Employee shall commit an act of fraud materially evidencing
bad faith toward the Company or any of its subsidiaries;
(iii) The Employee fails (after demand and an opportunity to correct
as set forth below) to substantially perform the duties reasonably assigned to
him by the Board of Directors of the Company which are normal and customary for
an Employee in a similar position in a substantially similar company in
Massachusetts (other than any such failure resulting from the Employee's
incapacity due to physical or mental illness). The Board shall first make a
written demand for substantial performance to Employee by the Board of Directors
of the Company. Such demand shall specifically identify the objective and
reasonable
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standards which such board believes that Employee has not substantially
performed such duties. Such demand shall also specify a reasonable time
forEmployee to demonstrate objectively to the Board of Directors of the Company
that he has substantially performed the duties reasonably assigned to him.
(d) At the election of the Employee, for Good Reason, as hereinafter
defined, after ten (10) business days written notice of the basis thereof to the
Company if during such period the Company shall not cure the basis thereof. For
the purpose of this Agreement, the Employee shall be deemed to have "Good
Reason" to terminate his employment only if the Company is in material breach of
this Agreement or any other written agreement the Company may have with the
Employee, or if the Employee resigns as President of the Company as provided in
Subsection 2b hereof.
(e) Upon the election of the Company, without Cause (as hereinabove
defined), after ten (10) business days prior written notice to the Employee and
by the affirmative vote of not less than a majority of the entire Board of the
Company at a meeting held for such purposes at which the Employee shall be
granted an opportunity to be heard, for any reason other than Cause.
8. Payments Upon Termination of Employment.
(a) Payments Upon Death. If at any time while he is employed hereunder
the Employee shall die, in addition to all other benefits to which he or his
personal representatives may be entitled, the Company shall pay to his
designated beneficiary or, if no such beneficiary exists, to his estate, for a
period of three (3) months following the Employee's death, such amounts of base
annual salary as the Employee would have been entitled to receive during said
period (and at the times he would have been entitled to receive them) had he
remained alive.
(b) Payments Upon Disability. If at any time during the term of this
Agreement, in the opinion of a physician mutually agreeable to the Company and
the Employee, the Employee shall be determined to be unable to render services
hereunder due to physical or mental illness or accident, in addition to all
other benefits to which he or his personal representatives may be entitled, the
Employee shall be entitled to receive all benefits payable to him under the
Bank's long-term disability income plan. Notwithstanding the above, the Employee
will be deemed to be disabled if he has been unable for one
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hundred eighty (180) consecutive days to render services required to be rendered
by him during the term hereof.
(c) Payments upon Expiration of Term Without Renewal. In the event that
employment pursuant to this Agreement shall expire without renewal, the Employee
shall be entitled to receive compensation through the date of expiration and
shall be entitled to purchase at Bank's book value any Bank-owned automobile
then being used by him.
(d) Payments Upon Termination Without Cause or for Good Reason. If at
any time during the term of this Agreement (as provided in Section 1 hereof) the
employment of the Employee is terminated (i) voluntarily for Good Reason or (ii)
involuntarily for any reason except for termination for Cause under Section 7c,
as heretofore defined, then in such case:
(i) Within five days after such termination, the Company shall pay
to the Employee (or to his personal representative in case of death), the sum of
all accrued and unpaid compensation through the date of such termination, plus a
lump sum amount equal to twelve months' base annual salary as in effect as of
the date of such termination.
(ii) The Company shall maintain or cause to be maintained in effect
for the Employee for a period of twelve months following such termination, at
the Company's sole expense, all group insurance (including life, health,
accident and disability insurance) and all other employee benefit plans,
programs or arrangements (other than the Bank's retirement plan, the Bank's
profit-sharing plan, and the Company's employee stock ownership plan), in which
the Employee was participating at any time during the twelve (12) months
preceding such termination.
(iii) The Employee shall be entitled to purchase at Bank's book
value any Bank-owned automobile then being used by him.
(iv) The Employee shall not be required to mitigate the amount of
any payment provided for in this Section 8(d) by seeking employment or
otherwise.
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In the event that the Employee's participation in any of the foregoing
plans, programs or arrangements (including those contemplated by Subsection (d)
hereof) is barred by law or otherwise, or in the event that any such plan,
program or arrangement is discontinued or the benefits thereunder are materially
reduced during such period, the Company shall provide the Employee with benefits
substantially similar to those to which the Employee was entitled immediately
prior to the date of his termination of employment. Upon expiration of the
period of coverage provided hereunder, the Employee shall be provided with the
opportunity to have assigned to him at no cost and with no appointment of
prepaid premiums any assignable insurance owned by the Company or any of its
subsidiaries and relating specifically to the Employee.
9. Payments upon Termination for Cause. If at any time during the term of
this Agreement, Employee is terminated for Cause pursuant to Section 7(c)
hereof, the Company shall pay Employee, to the extent it has not been previously
paid, an amount equal to Employee's full base salary through the date of
Employee's termination of employment at the rate in effect at that time and the
Company shall have no further obligation to Employee under this Agreement.
10. Notices. Notices under this Agreement shall be in writing and shall be
mailed by registered or certified mail, effective upon receipt, addressed as
follows:
(a) To the Company: Beverly National Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
(b) To the Employee: Xx. Xxxxx Xxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxx Xxxxxxxx, XX 00000-0000
Either party may by notice in writing change the address to which notices
to it or him are to be addressed hereunder.
10. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Boston,
Massachusetts, in accordance with the rules of the American Arbitration
Association then in effect. Notwithstanding the pendency of any such dispute or
controversy, the Company will pay the Employee promptly an amount equal to his
full compensation in effect when the notice giving rise to the dispute was
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given (including, but not limited to, base salary) and shall provide or cause to
be provided to the Employee all 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. Amounts paid under this Section 10 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 the Employee shall be entitled to seek specific performance of his
right to be paid as specified in this Section 10.
11. Miscellaneous.
(a) Indemnification. During the period of his employment hereunder, the
Company agrees to indemnify the Employee in his capacity as a director and
officer of the Bank, the Company, and, each subsidiary of either, all to the
maximum extent permitted under the laws of the Commonwealth of Massachusetts and
applicable banking rules and regulations. The provisions of the Section 11(a)
shall survive expiration or termination of this Agreement for any reason
whatsoever.
(b) Legal Fees. The Company shall pay to the Employee all reasonable
legal fees and expenses incurred by him in contesting or disputing any
termination of this Agreement or in seeking to obtain or enforce any right or
benefit provided by this Agreement, provided that the final resolution of such
matter principally is in Employee's favor.
(c) Entire Agreement. This Agreement constitutes the entire Agreement
between the parties and may not be changed except by a writing duly executed and
delivered by the Company and the Employee in the same manner as the Agreement.
(d) Governing Law. This Agreement is governed by and shall be construed
in accordance with the laws of the Commonwealth of Massachusetts. Employee
agrees that it supersedes in all respects any prior agreement between the
Company or the Bank and the Employee.
(e) Binding Effect; Non-Assignability. This Agreement shall be binding
upon the Company and inure to the benefit of the Company and its successors.
Neither this Agreement nor any rights arising hereunder may be assigned or
pledged by the Employee during his lifetime. This Agreement shall inure to the
benefit of and be enforceable by the Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
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(f) Time is of the Essence. It is expressly understood by the Obligors
that time is of the essence in performance of all terms and conditions of this
Agreement.
(g) Duplicate Originals. Two or more duplicate originals of this
Agreement may be signed by the parties hereto, each of which shall constitute
one and the same instrument.
(h) Captions. The caption of the sections of this Agreement are for the
purpose of convenience only and are not intended to be a part of this Agreement
and shall not be deemed to modify, explain, enlarge or restate any of the
provisions in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the within instrument
as a sealed document as of the date first above written.
ATTEST BEVERLY NATIONAL CORPORATION
/s/ Xxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------------- ------------------------------------
Its Duly Authorized Representative
/s/ Xxxxx Xxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxx, Individually
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT
BY AND BETWEEN
BEVERLY NATIONAL CORPORATION
AND
XXXXX XXXXXXXX
DATED: July 9, 2002
1. Automobile - The Employee shall be entitled to the exclusive use of an
automobile the value of which shall not be unreasonable in view of the
Employee's position consistent with Company policy. The automobile may
be replaced every three (3) years or seventy thousand (70,000) miles,
whichever occurs first.
2. Vacation - The Employee shall be entitled to five (5) weeks paid
vacation in each calendar year during the term of the Agreement. A
vacation period should not be for more than four weeks or less than two
weeks. The Employee shall also be entitled to all paid holidays
recognized by the Bank.
3. Club Memberships - Upon concurrence of the Board of Directors of the
Company the Employee shall be entitled to reimbursement for club
membership fees and dues at a local country club of his choice and
consistent with Internal Revenue Service Regulations, such other club
membership fees and dues as shall be determined to be in the best
interests of the Company.
4. Conventions, Seminars and Travel - The Employee shall be entitled at no
expense to the Employee to attend conventions and seminars consistent
with the business of the Company and the Bank and his position
therewith.
5. General Reimbursement - The Employee shall be entitled to reimbursement
for any and all expenses incurred by him reasonably related to and
incurred on account of advancement of the interests of the Bank.
6. Pension Plan - The Employee shall be entitled to participate in the Bank's
retirement plan as amended from time to time.
7. 401(k) Profit Sharing Plan - The Employee shall be entitled to participate
in the Bank's 401(k) profit sharing plan as amended from time to time.
8. Incentive Stock Option Plan - The Employee shall be entitled to participate
in the Company's incentive stock options plans in effect from time to time.
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9. Directors' Plan - The Employee shall be entitled to participate in the
Company's Directors' Plans in effect from time to time. The Employee
shall not be entitled to receive fees for attendance at meetings of the
Board or of any committees thereof.
10. Employee Stock Ownership Plan - The Employee shall be entitled to
participate in the Company's employee stock ownership plan in effect from
time to time.
11. Insurance - The Employee shall be entitled to participate in all
insurance programs and benefits as outlined and subject to the
limitations contained in the Summary of Employee Benefits maintained by
the Company or the Bank including life, health, accident and
disability. The Company shall reimburse Employee for his COBRA health
insurance cost prior to Employee's eligibility under the Company's
health insurance plan. The Company shall provide Employee with key man
life insurance in such amounts as shall be mutually agreed upon.
12. Moving expenses to cover the cost of the amount of all household goods
and furnishings from West Simsbury, Connecticut to a community within
the Company's present service area and for reasonable temporary lodging
expenses, which in the aggregate shall not exceed $15,000.
13. Bank's Incentive Plan - The Employee will be entitled to participate in
the Bank's incentive plan in effect from time to time. Targets are
determined annually at budget time. Awards for President/CEO range from
0% to 40% of cash compensation of President/CEO. For employment through
December 31, 2002, Employee shall receive a bonus of $35,000, payable
not later than March 31, 2003.
14. Signing Bonus of Treasury Stock - The Company shall award Employee, as
bonuses, 500 shares of Company's common stock on each of August 1,
2003, August 1, 2004, August 1, 2005, August 1, 2006 and August 1,
2007, provided that Employee's employment with the Company (or any
successor) has not been previously terminated as a result of resignation,
death, disability or for Cause. A Certificate shall be issued as soon as
practical after each such award and such compensation shall be included in
Employee's W-2 compensation.
15. Supplemental Executive Retirement Plan - The plan will be set forth in
a separate agreement to be agreed by Company and Employee, based upon
Employee's existing plans and Company contributions in the future.
16. Change in Control Protection - The protection is set forth in the separate
agreement dated as of the date hereof.
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