1
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made as of the
29th day of August, 1997 (the "Effective Date"), is by and between
CFX Corporation (the "Company"), a New Hampshire corporation with
principal executive offices at 000 Xxxx Xxxxxx, Xxxxx,
Xxx Xxxxxxxxx 00000, and Xxxxxxx Xxxxxxxxxx, residing at 00 Xxxxx
Xxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxxxxx 00000 (the
"Executive").
RECITALS
WHEREAS, the Company, through its Board of Directors (the
"Board"), considers the maintenance of competent and experienced
executive officers to be essential to its long-term success;
WHEREAS, in this regard, the Company has determined that it
is in its best interests that the Executive continue to serve as
Executive Vice President of the Company, pursuant to a written
employment agreement;
NOW, THEREFORE, in furtherance of the interests described
above and in consideration of the respective covenants and
agreements herein contained, the parties hereto agree as follows:
1. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
(a) "Applicable Interest" means interest at the rate
provided in Section 1274(b)(2)(B) of the Code.
(b) "Cause" means the occurrence of any of the
following:
(i) the willful and continued failure of the
Executive to substantially perform the Executive's duties with the
Company (other than any such failure resulting from incapacity due
to physical or mental illness), after a written demand for
substantial performance is delivered to the Executive by the
President which specifically identifies the manner in which the
President believes that the Executive has not substantially
performed the Executive's duties;
(ii) the willful engaging by the Executive
in illegal conduct (excluding traffic violations, minor
misdemeanors or similar offenses) or gross misconduct that, in the
- 22 -
2
Board's reasonable opinion, may reflect adversely on the business
or reputation of the Company;
(iii) the removal and/or permanent prohibition of
the Executive from participation in the conduct of the affairs of
the Company or any of its subsidiary banks by an order issued
under Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance
Act, 12 U.S.C. 1818(e)(4) or 1818(g)(1);
(iv) the issuance by any court having appropriate
jurisdiction of an order under Section 21(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), 15 U.S.C.
78u(d)(2), prohibiting the Executive from acting as an officer or
director of the Company; or
(v) the conviction of the Executive for commission
of a felony.
(c) "Change in Control" means the occurrence of any of
the following events:
(i) there shall be consummated any consolidation,
merger, stock-for-stock exchange or similar transaction
(collectively, "Merger Transactions") involving securities of the
Company in which the holders of voting securities of the Company
immediately prior to such consummation own, as a group,
immediately after such consummation, voting securities of the
Company (or, if the Company does not survive the Merger
Transaction, voting securities of the corporation surviving such
transaction) having less than 50% of the total voting power in an
election of directors of the Company (or such other surviving
corporation), excluding securities received by any members of such
group which represent disproportionate percentage increases in
their shareholdings vis-a-vis the other members of such group;
(ii) any individual, corporation (other than the
Company), partnership, trust, association, pool, syndicate, or any
other entity or any group or persons acting in concert (other than
an employee benefit plan of the Company or one of its affiliates)
becomes the beneficial owner (as that concept is defined in
Rule 13d-3 promulgated by the Securities and Exchange Commission
under the Exchange Act) as a result of any one or more securities
transactions, including gifts and stock repurchases but excluding
any Merger Transactions, of securities of the Company possessing
one-third or more of the voting power for the election of
directors of the Company;
(iii) during any period of twenty-four consecutive
months, individuals who at the beginning of such period
constituted the Board (including for this purpose any new director
- 23 -
3
whose election or nomination for election by the Company's
shareholders was approved by a vote of at least a majority of the
directors then still in office who were directors at the beginning
of such period) cease for any reason to constitute at least a
majority of the Board (excluding any Board seat that is vacant or
otherwise unoccupied); or
(iv) there shall be consummated any sale, lease,
exchange or other transfer (in one transaction or a series of
related transactions, excluding any Merger Transactions), of all,
or substantially all, of the assets of the Company to a party
which is not controlled by or under common control with the
Company.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Company Bonus Plan" means any bonus, stock option,
profit-sharing or other cash- or equity-based incentive plan
offered by the Company.
(f) "Company Benefit Plan" means any pension (including
without limitation tax-qualified), thrift, deferred compensation,
stock purchase, life insurance, medical, dental, education,
accident, disability, welfare, retirement or other employee
benefit plan offered by the Company other than a Company Bonus
Plan.
(g) "Designated Office" means 000 Xxxx Xxxxxx, Xxxxx,
Xxx Xxxxxxxxx 00000, or such other office of the Company
designated by the President from time to time other than in
anticipation of, or following a Change in Control.
(h) "President" means the President of the Company.
(i) "Triggering Event" means the occurrence of any of
the following events:
(i) the termination by the Company of the
employment of the Executive for any reason other than Cause;
(ii) the assignment to the Executive without his
consent of any duties inconsistent in any material respect with
the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities, or
any other action by the Company which results in a diminution in
any material respect in such position, authority, duties or
responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith that
- 24 -
4
is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(iii) in anticipation of, or following a Change in
Control, the requirement by the Company that the Executive be
based at any office or location that is more than 75 miles from
the Designated Office;
(iv) after the Effective Date, the failure of the
Company without the Executive's consent to:
(A) continue in effect any Company Bonus Plan
in which the Executive participates that is material to the
Executive's total compensation, unless a substantially equivalent
arrangement, embodied in an ongoing substitute or alternative
plan, has been made with respect to such Company Bonus Plan;
(B) continue the Executive's participation in
any Company Bonus Plan and eligibility for bonuses thereunder, or
in any substitute or alternative plan, on a basis at least as
favorable as that existing at the date hereof, both in terms of
the amount of benefits provided and the level of the Executive's
participation relative to other participants; or
(C) continue to provide the Executive with
benefits comparable to those received by the Executive under any
Company Benefit Plan in which the Executive was participating, at
participation costs substantially similar to those paid by the
Executive;
provided, however, that it shall not be deemed a Triggering Event
if the Board, for bona fide business purposes and not in
anticipation of or following a Change in Control, modifies the
terms or conditions of any Company Bonus Plan or Company Benefit
Plan, so long as such modifications have or would have a
substantially similar effect upon all executive employees or all
employees of the Company who participate or who are eligible to
participate in the plan.
(v) the Company issues a Non-Renewal Notice to the
Executive as provided in Section 2 of this Agreement;
(vi) the Company shall have materially breached
any provision of this Agreement and such breach shall not have
been cured within 15 days after delivery of written notice thereof
to the President by the Executive, identifying the breach with
reasonable particularity; or
(vii) a reduction by the Company in the
Executive's base annual salary as in effect on the date hereof, as
- 25 -
5
the same may be increased from time to time as provided for in
this Agreement.
(j) "Willful" means that an action, conduct or deed is
done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive's action or omission
was in the best interests of the Company. Any act, or failure to
act, based upon the instructions or prior approval of the Board or
the President or based upon the advice of counsel for the Company,
shall be conclusively presumed to be done, or omitted to be done,
by the Executive in good faith and in the best interests of the
Company.
2. Employment Term. The initial term of employment under
this Agreement shall be for a period of three years commencing on
the Effective Date. This Agreement shall be extended
automatically for one additional year on each annual anniversary
date of the Effective Date unless either the Company, through the
President, or the Executive gives contrary written notice (the
"Non-Renewal Notice") to the other not less than three months in
advance of such anniversary date. References herein to the term
of this Agreement shall refer both to such initial term and such
successive terms.
3. Employment. During the term of employment provided for
in this Agreement, the Company agrees to employ the Executive in
the office or position set forth in the second Recital of this
Agreement, and the Executive agrees to serve in such office or
position and to perform the duties and discharge the
responsibilities associated therewith or such other duties and
responsibilities as may reasonably be assigned to the Executive
from time to time by the President. The Executive shall devote
all his working time and efforts to the business and affairs of
the Company and its subsidiaries, provided, however, that the
Executive may, with the approval of the President, serve as a
director or officer of any non-competing business or engage in any
other activity, including without limitation charitable or
community activity, to the extent that it does not inhibit the
performance of his duties hereunder.
4. Office and Services. In connection with the Executive's
employment hereunder, the Executive shall be based at the
Designated Office, except for required travel on the Company's
business. The Company shall furnish the Executive with office
space, stenographic assistance, and such other facilities and
services as shall be suitable to the Executive's position and
adequate for the performance of his duties hereunder.
- 26 -
6
5. Compensation. The regular compensation and benefits
payable to the Executive under this Agreement shall include the
following:
(a) Salary. The Company shall pay the Executive a base
annual salary hereunder of not less than $185,000, payable in
equal semimonthly installments or at such other intervals as shall
be agreed upon by the parties. The Executive's base annual salary
may be increased from time to time as determined by the President
and, if so increased, such base annual salary shall not thereafter
during the Executive's employment under this Agreement be
decreased and the obligation of the Company hereunder to pay the
Executive's base annual salary shall thereafter relate to such
increased base annual salary.
(b) No Separate Board Compensation. The Executive
shall not be entitled to receive any fees or additional payments
for serving as a member of the Board, as a member of any committee
of the Board, or as a member of any board of directors (or the
equivalent thereof) or any committee thereof of any subsidiary of
the Company.
(c) Discretionary Bonuses. During the term of this
Agreement, the Executive shall be eligible to participate in an
equitable manner with other executive employees of the Company and
its subsidiaries in any Company Bonus Plan or in other
discretionary bonuses authorized and declared by the Board, and
the board of directors (or the equivalent thereof) of the
Company's subsidiaries, or by their respective delegees.
(d) Participation in Benefit Plans. In addition to any
compensation and benefits provided for in this Agreement, the
Executive shall be eligible to participate in any Company Benefit
Plan or any other employee fringe benefits offered by the Company
or its subsidiaries for the benefit of executive employees or all
employees generally in which the Executive is eligible to
participate. The Executive's participation in any such Company
Benefit Plan shall be subject to all generally applicable
eligibility requirements thereof and shall not in any way limit or
reduce the obligation of the Company to pay the Executive's base
annual salary hereunder (except pursuant to, in accordance with,
or as required by the generally applicable terms of participation
of any such Company Benefit Plan).
(e) Vacation. The Executive shall be entitled to a
minimum annual paid vacation during the term of this Agreement of
four weeks per year or such longer period as the President may
approve.
- 27 -
7
(f) Reimbursement of Business Expenses. The Company
shall promptly reimburse the Executive for all reasonable travel
and other business expenses incurred by him in the performance of
his duties and responsibilities, subject to such reasonable
requirements with respect to substantiation and documentation as
may be specified by the Company.
6. Termination Procedures.
(a) Termination Notice. If the Executive's employment
by the Company is terminated for any reason during the term of
this Agreement (other than by reason of the Executive's death or
as a result of a consensual termination as provided in Section
8(c) of this Agreement), the terminating party shall provide the
other party with written notice (the "Termination Notice")
specifying: (i) the effective date of the termination (the
"Termination Date"), (ii) the specific provisions of this
Agreement upon which the termination is based and that are
applicable to the termination, and (iii) a reasonably detailed
discussion of the facts and circumstances providing the basis for
the termination under the specified provisions of this Agreement.
(b) Termination Date. If the Executive's employment is
terminated by the Executive, the Termination Date shall not be
less than two weeks after the date the Termination Notice is
tendered to the Company. If the Executive's employment is
terminated by the Company, the Termination Date shall not be less
than 30 days after the date the Termination Notice is tendered to
the Executive. Termination of the Executive's employment shall
occur on the Termination Date even if there is a dispute between
the parties relating to the provisions of this Agreement
applicable to such termination (a "Termination Dispute").
(c) Termination Dispute. If, prior to the Termination
Date, the party receiving the Termination Notice provides written
notice to the other party of the existence of a Termination
Dispute (which notice shall provide a reasonably detailed
discussion of the nature of the dispute, including the specific
provisions of this Agreement that the disputing party believes are
applicable to the termination), the Termination Dispute shall be
resolved by: (i) mutual written agreement of the parties hereto
or (ii) a final judgment, order or decree of a court of competent
jurisdiction (which is not appealable or with respect to which the
time for appeal therefrom has expired and no appeal has been
perfected). The parties hereto shall pursue the resolution of any
Termination Dispute with reasonable diligence.
(d) Termination Payments. If there is no Termination
Dispute, any amount owed by the Company to the Executive as a
result of the termination of the Executive's employment under this
- 28 -
8
Agreement shall be payable in immediately available funds on the
Termination Date. If there is a Termination Dispute, any amount
owed by the Company to the Executive as a result of the
termination of the Executive's employment under this Agreement
that is not in dispute shall be paid on the Termination Date, and
all other amounts shall be paid within five business days of the
resolution of the Termination Dispute as provided for in Section
6(c) of this Agreement, together with Applicable Interest.
7. Termination Due to a Triggering Event.
(a) If, during the term of this Agreement, the
Executive's employment by the Company is terminated (whether by
the Company or by the Executive) upon the occurrence of or within
12 months after a Triggering Event, (i) the Company shall make a
lump sum cash payment to the Executive in an amount equal to 299%
of the Executive's base annual salary at the time the Triggering
Event occurs plus the amount of any discretionary bonuses paid by
the Company to the Executive within the 12 months immediately
preceding the occurrence of the Triggering Event, (ii) the Company
shall continue to provide to the Executive for a three-year period
the Executive's then-existing coverage under the Company's health,
dental and life insurance plans or, if continued coverage under
such plans cannot be provided, substantially equivalent coverage
under alternative arrangements, and (iii) any restrictions
remaining on any restricted shares issued to the Executive under
the Company's restricted stock plans shall immediately lapse, any
performance shares issued to the Executive under the Company's
incentive stock plans shall immediately vest, any stock options
and stock appreciation rights granted to the Executive shall
become immediately exercisable, and the Executive may exercise any
such option or stock appreciation right until the later of the
expiration of its original term or one year after the effective
date of the Executive's termination, provided that this
Section 7(a)(iii) shall be inoperative to the extent that its
operation would preclude the application of the pooling of
interests accounting method to a business combination in which the
Company intends to use such method (subject to the foregoing
proviso, in the event of any conflict between the terms of this
Section 7(a)(iii) and the terms of any applicable stock or
incentive plan or implementing agreement between the Company and
the Executive, the terms of this Section 7(a)(iii) shall govern
unless prohibited by any applicable law in which case the Company
shall take all reasonable steps to ensure that the Executive
receives all the economic and financial benefits intended to be
conferred by this Section 7(a)(iii)).
(b) In the event that the Executive becomes entitled to
receive any benefit or payment in connection with a Triggering
Event or the Company's termination of the Executive's employment,
- 29 -
9
whether pursuant to the terms of this Agreement or otherwise
(collectively, the "Total Benefits"), and any of the Total
Benefits will be subject to any excise tax (the "Excise Tax")
imposed under Section 4999 of the Code, the Company shall pay to
the Executive an additional amount (the "Gross-Up Payment") such
that the net amount retained by the Executive from the Gross-Up
Payment, after deduction of any federal, state and local income
taxes, Excise Tax, and FICA and Medicare withholding taxes on the
Gross-Up Payment, shall be equal to the Excise Tax on the Total
Benefits. For purposes of determining the amount of such Excise
Tax on the Total Benefits, the amount of the Total Benefits that
shall be treated as subject to the Excise Tax shall be equal to
(i) the Total Benefits, minus (ii) the amount of such Total
Benefits that, in the opinion of tax counsel selected by the
Company and reasonably acceptable to the Executive ("Tax
Counsel"), are not excess parachute payments (within the meaning
of Section 280G(b)(1) of the Code).
(c) For purposes of Section 7(b), the Executive shall
be deemed to pay federal income taxes at the highest marginal rate
of federal income taxation in the calendar year in which the
Excise Tax is payable and state and local income taxes at the
highest marginal rate of taxation in the state and locality of the
Executive's residence on the effective date of his termination,
net of the reduction in federal income taxes which could be
obtained from deduction of such state and local taxes (calculated
by assuming that any reduction under Section 68 of the Code in the
amount of itemized deductions allowable to the Executive applies
first to reduce the amount of such state and local income taxes
that would otherwise be deductible by the Executive). Except as
otherwise provided herein, all determinations required to be made
under this Section 7 shall be made by Tax Counsel, which
determinations shall be conclusive and binding on the Executive
and the Company absent manifest error.
(d) In the event that the Excise Tax on the Total
Benefits is subsequently determined to be less than the amount
taken into account hereunder at the time of termination of the
Executive's employment, the Executive shall repay to the Company,
at the time that the amount of such reduction in Excise Tax is
finally determined, the portion of the Gross-Up Payment
attributable to such reduction (plus that portion of the Gross-Up
Payment attributable to the Excise Tax, federal, state and local
income taxes and FICA and Medicare withholding taxes imposed on
the Gross-Up Payment being repaid by the Executive to the extent
that such repayment results in a reduction in any such taxes and/
or a federal, state or local income tax deduction) plus Applicable
Interest. In the event that the Excise Tax on the Total Benefits
is finally determined to exceed the amount taken into account
hereunder at the time of the termination of the Executive's
- 30 -
10
employment (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional Gross-Up Payment,
which shall be calculated by Tax Counsel in the same manner and
using the same assumptions as set forth in Sections 7(b) and 7(c),
to the Executive in respect of such excess (plus any interest,
penalties or additions payable by the Executive to the Internal
Revenue Service or any other federal, state, local or foreign
taxing authority with respect to such excess or with respect to
the additional Gross-Up Payment) at the time that the amount of
such excess is finally determined.
(e) Following the occurrence of a Triggering Event, if
the Company or the Executive brings any action, suit or proceeding
for the enforcement, performance or construction of this
Agreement, the Company agrees to reimburse the Executive for all
reasonable costs and expenses incurred by him in such action, suit
or proceeding, including reasonable attorneys' and accountants'
fees and expenses.
8. Other Termination. Notwithstanding any other provision
of this Agreement, the Executive's employment hereunder shall
terminate under the following circumstances with the following
consequences:
(a) Termination By Company for Cause. The Company may
terminate the Executive's employment under this Agreement for
Cause. The termination of the Executive's employment under this
Agreement shall not be deemed for Cause unless and until (1) the
Company, through the President, delivers reasonable notice to the
Executive that it intends to terminate the Executive for Cause,
(2) the Executive is given an opportunity, together with counsel,
to be heard before the Board, (3) the Executive's termination is
approved by the affirmative vote of at least two-thirds of the
Board, and (4) the Company provides the Executive with a copy of
the resolutions duly adopted by the Board finding that, in the
good faith opinion of the Board, the Executive should be
terminated for Cause and specifying the particulars thereof in
detail. Upon termination for Cause, the Executive will not be
entitled to any further compensation for any period subsequent to
the effective date of such termination, except for pay or
benefits, if any, in accordance with the then existing severance
policies of the Company and the terms of the Company Bonus Plans
and Company Benefit Plans.
(b) Termination By Company for Disability. If, as a
result of the Executive's incapacity due to physical or mental
illness, the Executive shall not have performed his duties
hereunder on a full-time basis for six consecutive months, the
Executive's employment under this Agreement may be terminated by
- 31 -
11
the Company upon written notice. Such termination for disability
shall require the affirmative vote of a majority of the entire
Board. The Executive's compensation during any period of
disability prior to the effective date of such termination shall
be the amounts normally payable to him in accordance with his then
current base annual salary, reduced by the sum of the amounts, if
any, paid to the Executive under disability benefit plans
maintained by the Company or its subsidiaries. The Executive
shall not be entitled to any further compensation from the Company
or its subsidiaries for any period subsequent to the effective
date of such termination, except for pay or benefits, if any, in
accordance with then existing severance policies of the Company or
its subsidiaries and the terms of the Company Bonus Plans and
Company Benefit Plans.
(c) Consensual Termination. The parties hereto may
agree at any time to terminate both this Agreement and the
Executive's employment hereunder upon such terms and conditions as
the parties may mutually agree.
(d) Termination By Reason of Death. In the event of
the death of the Executive during the term of his employment
hereunder, the Company shall pay to the Executive's spouse, or if
the Executive leaves no spouse, to the estate of the Executive, a
lump sum cash payment in an amount equal to 100% of the
Executive's base annual salary as of the date of death, and upon
payment of such amount and any other amounts due and owing
hereunder and unpaid as of the date of death, this Agreement shall
thereupon terminate and no further amounts shall be payable
hereunder; provided, however, that nothing hereunder shall impair
the Executive's rights, if any, to pay or benefits under the
Company Bonus Plans and the Company Benefit Plans.
(e) Termination By Executive. If the Executive
terminates his employment with the Company for any reason other
than the occurrence of a Triggering Event as provided for in
Section 7 hereof or a consensual termination as provided for in
Section 8(c) hereof, the Executive will not be entitled to any
further compensation for any period subsequent to the effective
date of such termination, except for pay or benefits, if any, in
accordance with the then existing severance policies of the
Company and the Company Bonus Plans and the Company Benefit Plans.
9. Supervisory Suspension. In the event the Executive is
suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Company or any
of its subsidiary banks by a notice served under Section 8(e)(3)
or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
1818(e)(3) or 1818(g)(1), the Company's obligations under this
Agreement shall be suspended effective as of the service date of
- 32 -
12
the notice of suspension or temporary prohibition, unless stayed
by appropriate proceedings. If the charges in the notice are
dismissed, the Company shall (a) pay the Executive all
compensation withheld while its obligations under this Agreement
were suspended, together with Applicable Interest and
(b) reinstate all obligations under this Agreement that were
suspended.
10. Confidential Information. During the Executive's
employment with the Company and thereafter, the Executive shall
not disclose or use in any way any confidential business or
technical information or any trade secret acquired in the course
of such employment, other than (i) information that is generally
known in the Company's industry or acquired from public sources,
(ii) as required in the course of such employment, (iii) as
required by any court, supervisory authority, administrative
agency or applicable law, or (iv) with the prior written consent
of the Company. This Section 10 shall survive termination of this
Agreement.
11. No-Raid. The Executive agrees that, in the event the
Executive's employment with the Company is terminated for any
reason whatsoever and as a result of such termination the
Executive is entitled to receive compensation, benefits or
payments hereunder or under the Company's then existing severance
policies that, in the aggregate, equal or exceed 100% of the
Executive's base annual salary at the time of termination plus the
amount of any discretionary bonuses paid by the Company to the
Executive within the 12 months immediately preceding the
termination, the Executive shall not, for a period of one year (or
such lesser period as may be determined by the President and
disclosed to the Executive in writing) after the effective date of
the Executive's termination, solicit, actively interfere with the
Company's or any Company affiliate's relationship with, or attempt
to divert or entice away, any officer of the Company or its
affiliates.
12. Payment Obligation Absolute. The obligation of the
Company to pay the Executive the compensation, benefits or
payments provided herein during the term hereof shall be absolute
and unconditional and shall not be affected by any circumstances,
including without limitation any set-off, counterclaim,
recoupment, defense or other right which the Company may have
against the Executive. All amounts payable by the Company
hereunder shall be paid without notice or demand. Each and every
payment made hereunder by the Company shall be final and the
Company will not seek to recover all or any part of such payment
from the Executive, or from whosoever may be entitled thereto, for
any reason whatsoever except as provided in Section 7(d) hereof.
The Executive shall not be obligated to seek other employment in
- 33 -
13
mitigation of the amounts payable under any provision of this
Agreement and the obtaining of any such other employment shall in
no event limit or reduce the obligations of the Company to make
the payments required to be made under this Agreement.
13. No Right to Continued Employment. Nothing in this
Agreement shall be deemed to give the Executive the right to be
retained in the employ of the Company, or to interfere with the
right of the Company to discharge the Executive at any time,
subject in all cases to the terms of this Agreement.
14. Withholding. Any payments provided for hereunder shall
be paid net of any applicable withholding required under federal,
state or local law and any additional withholding to which the
Executive has agreed.
15. Successors and Assigns. This Agreement is a personal
services contract which may not be assigned by the Company, or
assumed from the Company by, any other party without the prior
written consent of the Executive. Subject to the foregoing
limitation, all rights hereunder shall inure to the benefit of the
parties hereto, their personal or legal representatives, heirs,
successors and assigns. The Company will require any successor
(whether direct or indirect, by purchase, assignment, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company expressly to assume this
Agreement and to agree to perform hereunder in the same manner and
to the same extent that the Company would be required to perform
if no such succession had taken place. References herein to the
Company will be understood to refer to the successor or successors
of the Company, respectively.
16. Notices. Any notice required or desired to be given
hereunder shall be in writing and shall be deemed given when
delivered personally or sent by certified or registered mail,
postage prepaid, to the address of the other party set forth in
the first paragraph of this Agreement, provided that any notice to
the Company shall be directed to the President, unless the notice
is by such person in which case the notice shall be directed to
both the Secretary of the Company and the most senior ranking Vice
President of the Company.
17. Waiver of Breach. Waiver by any party of a breach of
any provision shall not operate as or be construed a waiver by
such party of any subsequent breach hereof.
18. Entire Agreement. This agreement contains the entire
agreement among the parties concerning the employment of the
Executive by the Company, and supersedes any employment or change
- 34 -
14
in control agreements between the Executive and the Company or any
of its predecessors, subsidiaries or predecessors of subsidiaries.
19. Written Modification, Amendment or Waiver. No
modification, amendment or waiver of any provision hereof shall be
effective unless in writing specifically referring hereto and
signed by the party against whom such provision as modified or
amended or such waiver is sought to be enforced.
20. Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been
signed by each party hereto and delivered to the other party, it
being understood that all parties need not sign the same
counterpart.
21. Governing Law. This Agreement is governed by and is to
be construed and enforced in accordance with the laws of the State
of New Hampshire applicable to contracts made and to be performed
entirely therein.
22. Consent to Jurisdiction. Each party hereto irrevocably
consents to the exclusive jurisdiction of the courts of the State
of New Hampshire and the federal courts situated in the State of
New Hampshire in connection with any action to enforce the
provisions of this Agreement, to recover damages or other relief
for breach or default under this Agreement, to enforce any
decision or award of any arbitrators, or otherwise arising under
or by reason of this Agreement.
23. Construction.
(a) The section headings of this Agreement have been
inserted for convenience of reference only and shall not be deemed
to be a part of this Agreement.
(b) All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall
include all other genders where the context so requires.
(c) The singular shall include the plural, and vice
versa, where the context so requires.
(d) All references to sections of, or regulations
promulgated under, the Exchange Act, the Code or other statutes
shall be deemed also to refer to such sections or regulations as
amended from time to time and to any successor provisions to such
sections or regulations. All references to employee benefit plans
of the Company shall be deemed also to refer to such plans as
amended from time to time and to any successor plans thereto.
- 35 -
15
24. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without affecting the validity or
enforceability of any other term or provision hereof in that or
any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted
so as to be enforceable.
25. Authorization. The Company represents and warrants that
the execution of this Agreement has been duly authorized by
resolution of the Board.
IN WITNESS WHEREOF, the parties have executed or caused to be
executed this Agreement as of the date first above written.
CFX CORPORATION
By:
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
----------------------------------
Xxxxxxx Xxxxxxxxxx
- 36 -
