FORM OF KEY EMPLOYEE AGREEMENT
Exhibit
10.7
FORM
OF
KEY EMPLOYEE AGREEMENT
THIS
AGREEMENT is made as of the
day of
,
by
and
among The Berlin City Bank, a New Hampshire bank with its main office in Berlin,
New Hampshire (the "Subsidiary"), Xxxxxxxx Financial, Inc. a New Hampshire
corporation ("Xxxxxxxx") (Xxxxxxxx and the Subsidiary shall be hereinafter
collectively referred to as the "Company"), and _______., a resident of _______
_____________ (the "Executive").
WHEREAS
in order to allow the Executive to consider the prospect of a Change in Control
(as defined in Section 1) in an objective manner and in consideration of the
services to be rendered by the Executive to the Company and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Company, the Company is willing to provide, subject to
the
terms of this Agreement, certain severance benefits to protect the Executive
from the consequences of a Terminating Event (as defined in Section 1) occurring
subsequent to a Change in Control; and
WHEREAS,
in consideration of the continued employment of the Executive by the Company,
the entering into by Xxxxxxxx of that certain stock option agreement between
Xxxxxxxx and the Executive of even date herewith providing for participation
by
the Executive in Xxxxxxxx'x 1999 Stock Option and Grant Plan, the severance
benefits provided subject to the terms herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged
by
the Executive, the Executive agrees to be bound by certain restrictions
contained herein regarding competition, Confidential Information (as defined
in
Section 1) and proprietary rights.
1. Certain
Definitions. For the purposes of this Agreement, the following terms
shall have the following respective meanings:
|
(a)
|
"Change
in Control" shall be deemed to have occurred in any one of the
following
events:
|
|
(i)
|
if
there has occurred a change in control of either Xxxxxxxx or the
Subsidiary which Xxxxxxxx would be required to report in response
to Item
1 (or, in the case of the Subsidiary, Item 2) of Form 8-K promulgated
under the Securities Exchange Act of 1934, as amended (the "1934
Act"),
or, if such regulation is no longer in effect, any regulations promulgated
by the Securities and Exchange Commission, pursuant to the 1934 Act,
which
are intended to serve similar
purposes;
|
|
(ii)
|
when
any "person" (as such term is used in Sections 13(d) and 14(d)(2)
of the
0000 Xxx) becomes a "beneficial owner" (as such term is defined in
Rule
13d-3 promulgated under the 1934 Act), directly or indirectly, of
securities of Xxxxxxxx or the Subsidiary representing 25% or more
of the
total number of votes that may be cast for the election of directors
of
Xxxxxxxx or the Subsidiary, as the case may be;
|
|
(iii)
|
during
any period of two consecutive years (not including any period prior
to the
execution of this Agreement), individuals who are Continuing Directors
(as
hereinafter defined) cease for any reason to constitute at least
a
majority of the Board of Directors of Xxxxxxxx or the Subsidiary.
For this
purpose, a "Continuing Director" shall mean (a) an individual who
was a
director of Xxxxxxxx or the Subsidiary at the beginning of such period
or
(b) any new director (other than a director designated by a person
who has
entered into an agreement with Xxxxxxxx or the Subsidiary to effect
a
transaction described in clause (ii), (iv) or (v) of this Section
1(a))
whose election by the Board or nomination for election by Xxxxxxxx'x
or
the Subsidiary's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors of Xxxxxxxx or the Subsidiary,
as
appropriate, then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was
previously so approved;
|
|
(iv)
|
the
stockholders of Xxxxxxxx approve a merger or consolidation of Xxxxxxxx
or
the Subsidiary with any other corporation or bank, other than (a)
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 80% of the combined voting power of the
voting
securities of Xxxxxxxx or such surviving entity outstanding immediately
after such merger or consolidation or (b) a merger or consolidation
effected to implement a recapitalization of Xxxxxxxx (or similar
transaction) in which no "person" (as defined above) acquires more
than
30% of the combined voting power of Xxxxxxxx'x then outstanding
securities; or
|
|
(v)
|
the
stockholders of Xxxxxxxx or the Subsidiary approve a plan of complete
liquidation of Xxxxxxxx or the Subsidiary or an agreement for the
sale or
disposition by Xxxxxxxx or the Subsidiary of all or substantially
all of
Xxxxxxxx'x or the Subsidiary's
assets;
|
|
(b)
|
"Company-Related
Inventions and Developments" means all Inventions and Developments
which
either (i) relate at the time of conception or development to the
actual
or demonstrably anticipated business or research and development
activities of the Company; (ii) result from or relate to any work
performed for the Company, whether or not during normal business
hours;
(iii) are developed on Company work time; or (iv) are developed through
the use of Confidential Information, or the Company's equipment,
software,
or other facilities or resources;
|
|
(c)
|
"Confidential
Information" means information belonging to the Company, whether
reduced
to writing (or in a form from which such information can be obtained,
translated, or derived into reasonably usable form), or maintained
in the
mind or memory of the Executive, which derives independent economic
value
from not being readily known to or ascertainable by proper means
by others
who can obtain economic value from the disclosure or use of such
information, including without limitation, financial information,
reports,
and forecasts; inventions, improvements and other intellectual property;
trade secrets; know-how; designs, processes or formulae; software
or
related code; 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 Company. Confidential Information
includes information developed by the Executive in the course of
his
employment by the Company, as well as other information to which
the
Executive may have access in connection with his employment. Confidential
Information also includes the confidential information of others
with
which the Executive has a business relationship. Notwithstanding
the
foregoing, Confidential Information does not include information
in the
public domain, unless due to breach of the duties of the Executive
under
Section 5 below;
|
|
(d)
|
"Customer"
means any person or entity who (i) is receiving Services, directly
or
indirectly, from the Company on the date of termination of employment
of
the Executive with the Company, (ii) received Services, directly
or
indirectly, from the Company or the Executive at any time during
the two
year period immediately preceding the date of termination of employment
of
the Executive with the Company, (iii) was solicited, directly or
indirectly, in whole or in part, by the Executive on behalf of the
Company
to provide Services within two years preceding the termination of
employment of the Executive with the Company, or (iv) anyone solicited,
directly or indirectly, in whole or in part, on behalf of the Company
to
provide Services within two years preceding the termination of employment
of the Executive with the
Company;
|
|
(e)
|
"Inventions
and Developments" means any and all inventions, developments, creative
works and useful ideas of any description whatsoever, whether or
not
patentable, including without limitation, discoveries and improvements
which consist of or relate to any form of Confidential
Information;
|
|
(f)
|
"Restricted
Term" means the aggregate period equal to the period during which
the
Executive is employed by the Company, plus a period of 1.5 years
immediately following the termination of employment of the Executive
with
the Company;
|
|
(g)
|
"Services"
means banking and bank-related services, and such other services
that are
similar to and competitive with services the Company may provide
or
develop plans to provide during the employment of the
Executive;
|
|
(h)
|
"Terminating
Event" shall mean:
|
|
(i)
|
termination
by either of Xxxxxxxx or the Subsidiary of the employment of the
Executive
with either of Xxxxxxxx or the Subsidiary for any reason other than
(A)
death, (B) deliberate dishonesty of the Executive with respect to
Xxxxxxxx
or the Subsidiary or any subsidiary or affiliate of either, or (C)
conviction of the Executive of a crime involving moral turpitude,
or
|
|
(ii)
|
resignation
of the Executive from the employ of both of Xxxxxxxx and the Subsidiary,
while the Executive is not receiving payments or benefits from either
of
Xxxxxxxx or the Subsidiary by reason of the Executive's disability,
subsequent to the occurrence of any of the following
events:
|
|
(A)
|
a
significant change in the nature or scope of the Executive's
responsibilities, authorities, powers, functions or duties from the
responsibilities, authorities, powers, functions or duties exercised
by
the Executive immediately prior to the Change in Control;
or
|
|
(B)
|
a
determination by the Executive that, as a result of a Change in Control,
he is unable to exercise the responsibilities, authorities, powers,
functions or duties exercised by the Executive immediately prior
to such
Change in Control; or
|
|
(C)
|
a
reduction in the Executive's annual base salary as in effect on the
date
hereof or as the same may be increased from time to time except for
across-the-board salary reductions similarly affecting all management
personnel of the Company and all management personnel of any person
in
control of the Company; or
|
|
(D)
|
the
failure by the Company to pay to the Executive any portion of his
current
compensation or to pay to the Executive any portion of an installment
of
deferred compensation under any deferred compensation program of
the
Company within seven (7) days of the date such compensation is due;
or
|
|
(E)
|
the
failure by the Company to continue in effect any material compensation,
incentive, bonus or benefit plan in which the Executive participates
immediately prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan)
has
been made with respect to such plan, or the failure by the Company
to
continue the Executive's participation therein (or in such substitute
or
alternative plan) on a basis not materially less favorable, both
in terms
of the amount of benefits provided and the level of the Executive's
participation relative to other participants, as existed at the time
of
the Change in Control; or
|
|
(F)
|
the
failure by the Company to continue to provide the Executive with
benefits
substantially similar to those available to the Executive under any
of the
life insurance, medical, health and accident, or disability plans
or any
other material benefit plans in which the Executive was participating
at
the time of the Change in Control, or the taking of any action by
the
Company which would directly or indirectly materially reduce any
of such
benefits, or the failure by the Company to provide the Executive
with the
number of paid vacation days to which the Executive is entitled on
the
basis of years of service with the Company in accordance with the
Company's normal vacation policy in effect at the time of the Change
in
Control; or
|
|
(G)
|
the
failure of the Company to obtain a satisfactory agreement from any
successor(s) to assume and agree to perform this
Agreement.
|
2. Severance
Payments. In the event a Terminating Event occurs within one (1) year after
a
Change in Control, the Company shall pay to the Executive, in periodic
installments in accordance with the Company's usual practice for its senior
executives, for a period of 1.5 years from the date of such Terminating Event,
a
annualized amount equal to the annual compensation paid by the Company to the
Executive which was includible in the gross income of the Executive for the
calendar year ending before the date on which the Change in Control occurs;
provided, that if the Executive is in breach of his obligations under Section
7,
the Company may withhold amounts otherwise due to the Executive under this
Section 2 until the Executive has cured such breach or is otherwise in
compliance with Section 7.
3. Limitation
on Benefits.
(a) It
is the
intention of the Executive and the Company that no payments by the Company
to or
for the benefit of the Executive under this Agreement or any other agreement
or
plan pursuant to which he is entitled to receive payments or benefits shall
be
non-deductible to the Company by reason of the operation of Section 280G of
the
Internal Revenue Code of 1986 , as amended (the "Code") relating to parachute
payments. 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, any such payments exceed the amount which can be deducted by the Company,
such payments shall be reduced to the maximum amount which can be deducted
by
the Company. 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 Company 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 than no such
payments shall be non-deductible to the Company by reason of the operation
of
said Section 280G. To the extent that there is more than one method of reducing
the payments to bring them within the limitations of said Section 280G, the
Executive shall determine which method shall be followed, provided that if
the
Executive fails to make such determination within 45 days after the Company
has
sent him written notice of the need for such reduction, the Company may
determine the method of such reduction in its sole discretion.
(b) If
any
dispute between the Company and the Executive as to any of the amounts to be
determined under this Section 3, or the method of calculating such amounts,
cannot be resolved by the Company and the Executive, either the Company or
the
Executive after giving three days written notice to the other, may refer the
dispute to a partner in the Boston office of a firm of independent certified
public accountants selected jointly by the Company and the Executive. The
determination of such partner as to the amount to be determined under Section
3(a) and the method of calculating such amounts shall be final and binding
on
both the Company and the Executive. The Company shall bear the costs of any
such
determination.
4. Extent
of
Service. During the Executive's employment with the Company, the Executive
shall, subject to the direction and supervision of the Company, devote
his
full
business time, best efforts and business judgment, skill and knowledge
to
the
advancement of the Company's interests and to the discharge of his duties
and
responsibilities under this Agreement. The Executive shall not engage in any
other
business activity, except as may be approved by the Company; provided that
nothing
in this Agreement shall be construed as preventing the Executive
from:
|
(a)
|
investing
his assets in any company or other entity in a manner not prohibited
by
Section 7 below and in such form or manner as shall not require any
material activities on his 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 ability of the Executive to fulfill his duties
and
responsibilities under this
Agreement.
|
5. Confidentiality.
The Executive acknowledges and agrees that his employment creates a relationship
of confidence and trust with the Company with respect to all Confidential
Information. At all times, both during the Executive's employment with the
Company and after the termination of such employment, the Executive shall keep
in confidence and trust all such Confidential Information, and shall not use
or
disclose any such Confidential Information without the written consent of the
Company, except as may be necessary in the ordinary course of performing his
duties to the Company. In furtherance of the foregoing:
(a) Documents,
Records, etc. All documents, records, data, apparatus, equipment and physical
property, whether or not pertaining to Confidential Information or
Company-Related Inventions and Developments, which are furnished to the
Executive by the Company or are produced by the Executive in connection with
his
employment shall be and remain the sole property of the Company. The Executive
shall return to the Company all such materials and property, including any
material or medium from which any Confidential Information may be ascertained
or
derived, as and when requested by the Company. In any event, the Executive
shall
return all such materials and property immediately upon termination of his
employment for any reason. The Executive shall not retain any such material
or
property or any copies, compilations, or analyses thereof after such
termination.
(b) Assignment
of
Inventions and Developments. The Executive agrees that all Company-Related
Inventions and Developments which he conceives or develops, in whole or in
part,
either alone or jointly with others, during the term of his employment with
the
Company shall be the sole property of the Company. The Company shall be the
sole
owner of all patents, copyrights and other proprietary rights in and with
respect to such Company-Related Inventions and Developments. To the fullest
extent permitted by law, such Company-Related Inventions and Developments shall
be deemed works made for hire. The Executive hereby transfers and assigns to
the
Company any proprietary rights which he may have or acquire in any such
Company-Related Inventions and Developments, and the Executive hereby waives
any
other special rights which he may have or accrue therein. The Executive agrees
to execute any documents and take any actions that may be required to effect
and
confirm such transfer, assignment and waiver. The provisions of this Section
5(b) shall apply to all Company-Related Inventions and Developments which are
conceived or developed by the Executive during the term of his employment with
the Company, whether or not further development or reduction to practice may
take place after termination of such employment, for which purpose it shall
be
presumed that any Company-Related Inventions and Developments conceived by
the
Executive which are reduced to practice within one year after termination of
the
employment of the Executive were conceived during the term of the Executive's
employment with the Company unless the Executive is able to establish a later
conception date by clear and convincing evidence. THE EXECUTIVE HEREBY
REPRESENTS AND WARRANTS TO THE COMPANY THAT ALL INVENTIONS AND DEVELOPMENTS
MADE
BY THE EXECUTIVE PRIOR TO HIS EMPLOYMENT BY THE COMPANY ARE DISCLOSED IN EXHIBIT
A ATTACHED TO THIS AGREEMENT. The Executive agrees promptly to disclose to
the
Company, or to persons designated by the Company, all Company-Related Inventions
and Developments which are or may be subject to the provisions of this Section
5(b). The Executive further agrees to assist the Company, at the Company's
request from time to time and at its expense, to obtain and enforce patents,
copyrights or other proprietary rights with respect to Company-Related
Inventions and Developments in any and all countries and the Executive agrees
that he shall execute all documents reasonably necessary or appropriate for
this
purpose. This obligation of the Executive shall survive the termination of
employment of the Executive, provided that the Company shall compensate the
Executive at a reasonable rate after such termination for time actually spent
by
the Executive at the Company's request on such assistance. In the event that
the
Company is unable for any reason to secure the Executive's signature to any
document reasonably necessary or appropriate for any of the foregoing purposes
(including renewals, extensions, continuations, divisions or continuations
in
part), the Executive hereby irrevocably designates and appoints the Company
and
its duly authorized officers and agents as the Executive's agents and
attorneys-in-fact to act for the Executive and on behalf of the Executive,
but
only for the purpose of executing and filing any such document and doing all
other lawfully permitted acts to accomplish the foregoing purposes, with the
same legal force and effect as if it had been executed or done by the
Executive.
6. Nonsolicitation
of Customers. During the Restricted Term, regardless of the reason for
termination of the employment of the Executive, the Executive shall not,
directly or indirectly, in any capacity:
|
(a)
|
solicit
the business or patronage of any Customer for any other person or
entity
engaged in or for the purpose of providing
Services;
|
|
(b)
|
divert,
entice, or otherwise take away from the Company the business or patronage
of any Customer, or attempt to do
so;
|
|
(c)
|
solicit
or induce any Customer to terminate or reduce its relationship with
the
Company;
|
|
(d)
|
provide
or assist with the provision of Services to a Customer (except in
his
capacity as an employee of the Company);
or
|
|
(e)
|
refer
a Customer to another provider of
Services.
|
7. Unfair
Competition. During the Restricted Term, regardless of the reason for
termination of employment of the Executive, the Executive shall not, directly
or
indirectly, in any capacity, whether as owner, partner, director, shareholder,
consultant, agent, employee, co-venturer or otherwise, engage, participate,
assist or invest in any business activity anywhere in the State of New
Hampshire, or any county in another state that is contiguous to a county where
Xxxxxxxx or any of its subsidiaries or affiliates has an office, where the
Company directly or indirectly provides or uses Services or the Company is
preparing to provide Services, if such business activity involves the
development, production, sale, provision or marketing of Services or products
or
services like or similar to, or otherwise competitive with the Services. The
foregoing shall not prevent the Executive from owning up to one percent of
the
outstanding securities of a publicly-held corporation which competes with the
Company, or from being employed by or affiliated or associated with any person
or entity after termination of the employment of the executive with the Company
so long as the Executive does not have any direct or indirect involvement on
behalf of any such person or entity with respect to developing, producing,
selling, providing or marketing Services. Notwithstanding any provision of
this
Agreement to the contrary, in the event a Terminating Event occurs following
a
Change in Control, the Executive shall not be subject to the restrictions
outlined above in this Section 7 for a period in excess of six (6) months from
the date of such Terminating Event.
8. Nonsolicitation
of Employees. During the Restricted Term, regardless of the reason for
termination of the employment of the Executive, the Executive shall not directly
or indirectly, in any capacity:
|
(a)
|
hire
or employ, directly or indirectly, through any enterprise with which
the
Executive is associated, any current employee or agent of the Company
or
any individual who had been employed by or served as an agent to
the
Company within one year preceding the date of termination of employment
of
the Executive; or
|
|
(b)
|
recruit,
solicit or induce (or in any way assist another person or enterprise
in
recruiting, soliciting or inducing) any employee or an agent of the
Company to terminate his or her employment or other relationship
with the
Company.
|
9. Acknowledgments.
The Executive acknowledges and agrees that the restrictions set forth in
Sections 5, 6, 7 and 8 are intended to protect the Company's interest in its
Confidential Information and its commercial relationships and goodwill (with
its
customers, prospective customers, vendors, consultants and employees), or
developed while the Executive was employed by the Company, and are reasonable
and appropriate for these purposes.
10. Disclosure
of Agreement. The Executive agrees that he shall disclose the existence and
terms of this Agreement to any prospective company, partner, co-venturer,
investor or lender prior to entering into an employment, partnership or other
business relationship with such person or entity.
11. Third-Party
Agreements and Rights. The Executive hereby confirms that he is not bound by
the
terms of any agreement with any previous company or other party which restricts
in any way his use or disclosure of information or his engagement in any
business. The Executive hereby represents and warrants to the Company that
the
execution by the Executive of this Agreement, the employment by the Executive
with the Company and the performance of the proposed duties of the Executive
for
the Company will not violate any obligations the Executive may have to any
such
previous company or other party. In the Executive's work for the Company, the
Executive agrees that he shall not disclose or make use of any information
in
violation of any agreements with or rights of any such previous company or
other
party, and he shall not bring to the premises of the Company any copies or
other
tangible embodiments of non-public information belonging to or obtained from
any
such previous employment or other party.
12. Litigation
and Regulatory Cooperation. During and after the employment of the Executive
by
the Company, the Executive shall cooperate fully with the Company 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 Company which relate to events or
occurrences that transpired while the Executive was employed by the Company.
The
full cooperation of the Executive in connection with such claims or actions
shall include, but shall 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
Company at mutually convenient times. During and after the employment of the
Executive by the Company, the Executive shall cooperate fully with the Company
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 Company.
The
Company shall reimburse the Executive for any reasonable out-of-pocket expenses
incurred in connection with the performance by the Executive of obligations
pursuant to this Section 12.
13. Injunction.
The Executive acknowledges and agrees that it would be difficult to measure
any
damages caused to the Company which might result from any breach by the
Executive of the promises set forth in this Agreement, and that in any event
money damages would be an inadequate remedy for any such breach. Accordingly,
the Executive agrees that if the Executive breaches, or threatens to breach,
any
portion of this Agreement, the Company shall be entitled, in addition to, and
not in substitution for, all other remedies that it may have, at law or in
equity, to an injunction or other appropriate equitable relief to restrain
any
such breach without showing or proving any actual damage to the
Company.
14. Severability.
The parties hereto agree that if any provisions of this Agreement shall be
adjudicated to be invalid or unenforceable, such provision shall be deleted
from
the Agreement, but such deletion is to apply only with respect to the operation
of such provision in the particular jurisdiction in which such adjudication
is
made, and the validity or enforceability of any other provision hereof shall
not
be affected thereby. The parties hereto further agree that to the extent any
provision hereof is deemed unenforceable by virtue of its scope in terms of
area
or length of time or for any other reason, but may be made enforceable by
limitations thereon, such provision shall be enforceable to the fullest extent
permissible under the laws and public policies applied in the jurisdiction
in
which enforcement is sought.
15. Entire
Agreement. This Agreement contains the entire and only agreement between the
parties hereto respecting the subject matter hereof and supersedes all prior
agreements and understandings between the parties as to the subject matter
hereof.
16. Survival
of Obligations; Extension. The Executive acknowledges and agrees that his
obligations under this Agreement shall survive the termination of his employment
with the Company regardless of the manner of or reasons for such termination,
and regardless of whether such termination constitutes a breach of this
Agreement or of any other agreement the Executive may have with the
Company.
17. Assignment.
The Executive shall not make any assignment of this Agreement or any interest
herein, by operation of law or otherwise, without the prior written consent
of
Xxxxxxxx, and without such consent any attempted transfer shall be null and
void
and of no effect. The Company shall not make any assignment of this Agreement
or
any interest herein, by operation of law or otherwise, without the prior written
consent of the Executive, and without such consent any attempted transfer shall
be null and void and of no effect; provided, that the Company may assign all
or
any portion of its rights under this Agreement: (a) to any of its affiliates,
(b) by operation of law to any corporation or other entity with or into which
the Company may be merged or consolidated, or (c) to any corporation or other
entity to which the Company transfers all or substantially all of its assets;
provided such corporation or other entity assumes this Agreement and all
obligations and undertakings of the Company hereunder.
18. Binding
Effect. This Agreement shall inure to the benefit of, and be binding upon,
and
enforceable against Xxxxxxxx, the Subsidiary and the Executive , their
respective successors, executors, administrators, heirs and permitted assigns.
In the event of the Executive's death prior to the completion by the Company
of
all payments due to him under this Agreement, the Company shall continue such
payments to the Executive's beneficiary designated in writing to the Company
prior to his death (or to his estate, if he fails to make such
designation).
19. Amendment.
This Agreement may not be amended except in a writing signed by all parties
hereto.
20. No
Contract of Employment. Nothing in this Agreement shall be construed as a
contract of employment between the Executive and the Company or as a commitment
on the part of the Company to retain the Executive in any capacity for any
period of time.
21. Notices.
Any notices, requests, demands and other communications provided for by this
Agreement will be sufficient if in writing and delivered in person or sent
by
registered or certified mail, postage prepaid, to the Executive at the address
set out below the signature of the Executive below and, in the case of any
notice to the Company, at the main office of Xxxxxxxx, to the attention of
its
President and Chief Executive Officer.
22. Governing
Law. The validity, construction, and enforceability of this Agreement shall
be
governed by and construed in all respects in accordance with the laws of the
State of New Hampshire without giving effect to the conflict of laws provisions
thereof. This Agreement is executed under seal.
23. Term.
This Agreement shall take effect as of the date hereof and shall terminate
upon
expiry of the Restricted Term.
24. Withholding.
All payments made by the Company under this Agreement shall be net of any tax
or
other amounts required to be withheld by the Company under applicable
law.
25. Arbitration
of Disputes. Any controversy or claim arising out of or relating to this
Agreement or the breach thereof shall be settled by arbitration in accordance
with the laws of the State of New Hampshire by three arbitrators, one of whom
shall be appointed by the Company, one by the Executive and the third by the
first two arbitrators. If the first two arbitrators cannot agree on the
appointment of a third arbitrator, then the third arbitrator shall be appointed
by the American Arbitration Association in the City of Concord. Such arbitration
shall be conducted in the City of Concord in accordance with the rules of the
American Arbitration Association, except with respect to the selection of
arbitrators which shall be as provided in this Section 25. Judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. In the event that it shall be necessary or desirable
for
the Executive to retain legal counsel and/or incur other costs and expenses
in
connection with the enforcement of any or all of the Executive's rights under
this Agreement, the Company shall pay (or the Executive shall be entitled to
recover from the Company, as the case may be) the Executive's reasonable
attorneys' fees and other reasonable costs and expenses in connection with
the
enforcement of said rights (including the enforcement of any arbitration award
in court) regardless of the final outcome, unless and to the extent the
arbitrators shall determine that under the circumstances of recovery by the
Executive of all or a part of any such fees and costs and expenses would be
unjust. This provision shall not apply to Section 3(b), except in the event
that
the Company and the Executive cannot agree on the selection of the accounting
partner described in said Section 3(b).
26. Allocation
of Obligations. Xxxxxxxx and the Subsidiary shall allocate among themselves
which party shall be responsible for paying the severance payments and other
benefits directed by this Agreement. The payment by either party of such
severance payments and other benefits shall satisfy the obligations of the
non-paying party under this Agreement. Both Xxxxxxxx and the Subsidiary shall
be
jointly liable in the event of a failure by both parties to pay such severance
payments and other benefits.
27. 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.
28. Election
of Remedies. An election by the Executive to resign after a Change in Control
under the provisions of this Agreement shall not constitute a breach by the
Executive of any employment agreement between the Company and the Executive
and
shall not be deemed a voluntary termination of employment by the Executive
for
the purpose of interpreting the provisions of any of the Company's benefit
plans, programs or policies. Nothing in this Agreement shall be construed to
limit the rights of the Executive under any employment agreement he may then
have with the Company; provided, however, that if there is a Terminating Event
under Section 1 hereof, the Executive may elect either to receive the severance
payment provided under Section 2 or such termination benefits as he may under
any such employment agreement, but may not elect to receive both.
29. Amendment.
This Agreement may be amended or modified only by a written instrument signed
by
the Executive and by duly authorized representatives of each of Xxxxxxxx and
the
Subsidiary.
IN
WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by Xxxxxxxx, by its duly authorized officer, by the Subsidiary, by its
duly
authorized officer, and by the Executive, as of the date first above
written.
|
WITNESS:
|
||||
|
ATTEST:
|
THE
BERLIN CITY BANK
|
|||
|
By:
|
||||
|
Title:
|
||||
|
|
Clerk
|
