Exhibit 10 (i)
EMPLOYMENT AGREEMENT
By and Between
EVERGREEN BANCORP, INC.
and
XXXXXX X. XXXXXX
TABLE OF CONTENTS
Page
BACKGROUND 2
1. Employment and Duties 2
2. Term 3
3. Extent of Service 3
4. Compensation 5
a. Base Compensation 5
b. Stock Options 6
5. Executive Benefits 7
6. Automobile Allowance 8
7. Termination by the Company 8
a. Death or Disability 8
b. Termination for Cause 9
c. Termination by Notice 10
8. Termination by the Executive 11
a. Termination with Good Reason 11
b. Termination without Good Reason 12
9. Effect of Termination 12
10. Covenant Not to Compete 13
a. Covenant 13
b. Change of Control 13
c. Injunctive Relief 13
d. Enforceability of Covenant 14
11. Covenant Not to Solicit 14
a. Special Value of Executive's Services 14
b. Non-Solicitation of Customers 15
c. Change of Control 15
d. Injunctive Relief 15
e. Enforceability of Covenant 16
12. Nondisclosure of Confidential Information 16
a. Confidential Information Defined 16
b. Nondisclosure of Confidential Information 16
c. Injunctive Relief 17
d. Enforceability of Covenants 17
13. Change in Control 17
a. Applicability 17
b. Definitions 18
c. Benefits upon Termination of Employment
Following a Change in Control 23
i. Termination 23
ii. Benefits to be Provided 24
A. Salary 24
B. Bonuses 25
C. Health and Life Insurance Coverage 25
D. Executive Retirement Plans 26
E. Effect of Lump Sum Payment 26
F. Effect of Death or Retirement 27
G. Limitation on Amount 27
H. Modification of Amount 28
I. Avoidance of Penalty Taxes 28
J. Additional Limitation 28
K. Rabbi Trust 28
14. Regulatory Intervention 29
15. Indemnification 31
16. Litigation Expenses 32
17. Miscellaneous 32
a. Waiver 32
b. Severability 33
c. Assignability 33
d. Other Agents 33
e. Entire Agreement 33
f. Governing Law 34
g. Notices 34
h. Amendments and Modifications 34
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), dated December 19, 1996,
becoming effective on the 7th day of March, 1997, is made by and between
EVERGREEN BANCORP, INC. (hereinafter the "Company" and XXXXXX X. XXXXXX
(hereinafter "Executive"):
W I T N E S S E T H:
WHEREAS, Company and Executive entered into an Employment Agreement
the 7th day of February, 1994 which Agreement remains in full force and
effect and which Agreement has a term of 3 years and has a normal
expiration date of March 6, 1997, and
WHEREAS, Company has been eminently satisfied with the services of
Executive and,
WHEREAS, are willing to enter into a new Employment Agreement to
become effective the 7th day of March, 1997 under the terms and conditions
set forth below,
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereby mutually
agree as follows:
BACKGROUND
Executive has indicated to the Company that he desires to enter into
a new Employment Agreement with the Company that spells out the terms and
conditions of his employment with the Company. The Company considers the
establishment and maintenance of sound and vital management with a Chief
Executive Officer to be essential to protecting and enhancing the best
interests of the Company and its shareholders and accordingly, believes
that appropriate steps should be taken to avoid distraction in
circumstances arising from the possibility of a change in control of the
Company. Therefore, the Company is willing to engage Executive and
Executive is willing to serve the Company in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereby agree as follows:
1. Employment and Duties. Executive will be employed as President
and Chief Executive Officer of the Company. Executive's primary duties
shall be those of President and Chief Executive Officer and such duties as
may be assigned to him from time to time by the Board of Directors of the
Company.
2. Term. The term of this Agreement shall commence on March 7,
1997, and shall continue until March 6, 2000, (the Original Term) unless
earlier terminated as provided in Sections 7 or 8 of this Agreement.
Provided that this Agreement shall be in full force and effect on
March 7, 1999, without breach by Executive, this Agreement shall (without
the need of any other signed writing) be extended for a period of one
additional year, i.e., until March 6, 2001; and each March 7th after March
7, 1999, with the same proviso, this Agreement shall be similarly extended
for a period of one additional year, unless either party gives written
notice to the other no later than December 1 of the preceding year that
the giver of notice does not elect to extend the term. No further
extensions shall occur to extend this contact beyond the year in which
Executive attains the age of 65, to wit: 2004.
3. Extent of Service. (a) During the term of this Agreement,
Executive agrees to be a full-time executive officer of the Company and to
devote his time, energy, and skill to the business of the Company and to
the fulfillment of his obligations under this Agreement. During the term
of this Agreement, Executive shall not engage in, or otherwise be
interested in, directly or indirectly, any other business or activity that
is in competition with the Company or that would result in a conflict of
interest with the Company (unless such activity is approved by the Board
of Directors), or that would materially affect Executive's ability to
perform his duties as set forth in or contemplated by this Agreement.
Executive's responsibilities for managing the Company shall be in
accordance with the policies and objectives established by the Board of
Directors, or in such other capacity involving duties and responsibilities
at least equal in importance to those of a chief executive officer as the
Board of Directors may from time to time determine. In any such capacity,
Executive will report directly to the Company's Board of Directors.
Executive will have the authorities, powers, functions, duties and
responsibilities normally accorded to chief executive officers of
comparable size bank holding companies.
(b) Notwithstanding anything to the contrary contained in the
provisions of Subsection 3(a) hereof, nothing in this Agreement shall
preclude Executive from; (i) devoting reasonable periods of time to
charitable and community activities, and from managing his personal or
family investments, and (ii) serving on the Board of Directors of For-
Profit or Not-For-Profit corporations or other forms of such entities,
provided that the same does not result in a conflict of interest with the
Company (unless such activity is approved by the Board of Directors),
would conflict with any law, regulation or advice from examiners having
jurisdiction over the Company's business, or would materially affect
Executive's ability to perform his duties as set forth in or contemplated
by this Agreement.
(c) The members of the Board of Directors of the Company shall
nominate and use their best efforts to secure the election of Executive as
a director of the Company.
(d) Executive shall not be required to perform his duties hereunder
for more than sixty (60) working days in any calendar year, or for more
than fourteen (14) consecutive days at any one time, at any office located
in any other place than Glens Falls, New York.
4. Compensation.
(a) Base Compensation. During the term of this Agreement, the
Company agrees to pay Executive an annual base compensation of Three
Hundred Seventeen Thousand Five Hundred Dollars ($317,500) (the "Base
Compensation"), that sum being Executive's Base Compensation for the year
1996, less normal withholdings, payable in equal monthly or more frequent
installments as are customary under the Company's payroll practices from
time to time. The Company's Board of Directors shall review Executive's
Base Compensation annually and in its sole discretion may adjust
Executive's Base Compensation from year to year, but during the term of
this Agreement the Board may not decrease Executive's Base Compensation
below $317,500, Executive's Base Compensation for the year 1996, and
periodic increases, once granted, shall not be subject to revocation
during the term of this Agreement. The annual review of Executive's salary
by the Board will consider, among other things, changes in the cost of
living, Executive's own performance and the Company's performance. Any
action or review by the Board may be delegated to the Compensation
Committee thereof.
(b) Stock Options. (i) Under the terms of the Employment Agreement
of February 7, 1994 and as further compensation for the services of
Executive hereunder, and provided Executive shall still be employed by the
Company, the Company granted to Executive nonqualified stock options on
the dates and upon the terms indicated below.
Dates of Number of Dates
Grant Options Exercisable
March 8, 1997 20,000 100% on Xxxxx 0, 0000
Xxxxx 8, 1998 20,000 100% on March 7, 1999
(ii) The Company has caused 40,000 shares to be available for the 1997 and
1998 option grants indicated above. (Note: The 1994 Agreement provided for
two 10,000 share options to be granted on March 8, 1997 and March 8, 1998
respectively. The Board of Directors authorized a 100% stock dividend in
late 1996 and that action necessitated adjusting the number of share
options as reflected above.)
(iii) Each option to purchase shares of the Company's common stock granted
to Executive as described in Subsection 4(b) hereof shall contain the
following provision, to the extent permitted under the 1995 Plan:
In the event that the Executive's employment with the Company is
terminated pursuant to paragraph 7(c) of this Employment Agreement
dated as of March 7, 1997, between the Executive and the Company (the
"Employment Agreement"), then this Option shall immediately become
exercisable in full.
5. Executive Benefits. During the term of this Agreement, Executive
shall be entitled to participate in all executive benefit plans including,
but not limited to, the Company's Annual Short Term and Long Term
Executive Incentive Plans, and to receive all of the fringe benefits which
are generally available or provided to executive officers of the Company,
which benefits shall include, for Executive, but not limited to, six weeks
vacation in each calendar year, an office and a secretary.
6. Automobile Allowance. During the term of this Agreement, the
Company will assume the lease payments currently being paid by Executive
on the Acura Legend which he now drives. Upon expiration of such lease,
the Company will for the remainder of the term of this Agreement, if any,
provide Executive with an automobile allowance sufficient to cover the
lease or purchase payments in an amount of not more than $850 per month.
Company will procure and maintain liability, collision and comprehensive
insurance on such vehicle providing coverage equal to or better than as
exists currently.
7. Termination by the Company.
(a) Death or Disability. In the event of Executive's death or
disability (as defined below), this Agreement shall terminate immediately
and the Company shall be obligated only to pay compensation or other
benefits actually earned or accrued through such date, without prejudice
to any other rights or benefits that Executive is entitled to as a
consequence thereof. "Disability" means Executive's probable and expected
inability as a result of physical or mental incapacity to substantially
perform his duties for the Company on a full-time basis for a period of
six (6) months. The determination of whether Executive suffers a
Disability shall be made by a physician acceptable to both Executive (or
his personal representative) and the Company.
(b) Termination for Cause. The Company may terminate this Agreement
and Executive's employment hereunder immediately for (i) any intentional
acts or conduct by Executive involving moral turpitude; (ii) any gross
negligence by Executive in complying with the terms of this Agreement or
in performing his duties for the Company; (iii) any intentional act of
dishonesty in the performance of his duties for the Company; (iv)
deliberate and intentional refusal by Executive during the term of this
Agreement, other than by reason of incapacity due to illness or accident,
to obey lawful directives from the Board of Directors, or if Executive
shall have breached any obligation under this Agreement and such breach of
this Agreement shall result in a demonstrable, material injury to the
Company, and Executive shall have failed to remedy such alleged breach
within thirty (30) days from his receipt of written notice from the
Secretary of the Company demanding that he remedy such alleged breach. For
any claimed violation of this Subsection 7(b) there shall be delivered to
Executive a certified copy of a resolution of the Board of Directors of
the Company adopted by the affirmative vote of not less than that number
of directors equal to two-thirds of the entire membership, whether or not
present, at a meeting called and held for that purpose and at which
Executive was given an opportunity to be heard, finding that Executive was
responsible for the conduct set forth above. In the event of a termination
pursuant to this Subsection 7(b), Executive will not be entitled to any
further benefits or compensation under this Agreement except for
compensation or benefits actually earned or accrued through the date of
termination.
(c) Termination by Notice. The Company shall have the additional
right to terminate this Agreement and Executive's employment without cause
by giving Executive written notice of termination. Such termination will
be effective immediately upon receipt of notice by Executive or on such
other date as is stated in the notice. In the event of a termination
pursuant to this Subsection 7(c), Executive will be entitled only to (i)
continuation of his Base Compensation under this Agreement for the
remainder of the original (or any extended) term of this Agreement with a
minimum period of eighteen (18) months severance benefit equal to (x)
Executive's level of Base Compensation at the time of dismissal and (y)
the continuation of related health, pension and other fringe benefits for
a period of eighteen (18) months following termination. The Company's
obligation under the provision in the preceding sentence shall not
duplicate any payments otherwise required by Subsection 7(c).
8. Termination by the Executive.
(a) Termination With Good Reason. Executive may terminate his
employment if he determines, in good faith, that there has been a
significant reduction in the authorities, powers, functions, duties or
responsibilities assigned to him pursuant to Section 3, or because of any
other material breach by the Company of the terms hereof. In the event of
any such alleged breach, Executive shall specify by written notice, within
a reasonable time not to exceed, except in the case of a continuing
breach, thirty (30) days after the event giving rise to the notice, to the
Company of the breach relied on for such termination. The Company shall
have thirty (30) days from the receipt of such notice to cure such alleged
breach. If Executive remains unsatisfied that the action taken by the
Company cures the alleged breach the matter shall be determined by binding
arbitration through an arbitrator approved by the American Arbitration
Association or other arbitrator mutually acceptable to the parties. If the
arbitrator determines that there was a breach and that it was not
adequately cured within the time permitted, then Executive's employment
hereunder shall be deemed terminated upon written notice to that effect
given to the Company by Executive, and Executive shall thereupon be
entitled to the benefits and remedies specified in Subsection 7(c) of this
Agreement.
(b) Termination Without Good Reason. In addition, Executive may
terminate his employment without good reason at any time by giving thirty
(30) days notice in writing. At the end of such notice period the Company
will not owe Executive any compensation or benefits except as required by
law or pursuant to the terms of Company's benefit plans applicable to all
of Company's regular employees.
9. Effect of Termination. Notwithstanding any other provision of
this Agreement, Executive agrees that upon termination of this Agreement
pursuant to Section 7 hereof, he shall continue to be bound by the terms
of Sections 10, 11 and 12 hereof.
10. Covenant Not to Compete. (a) Covenant. For a period of two (2)
years following the expiration or termination of this Agreement for any
reason, Executive shall not serve as an executive officer or director of a
depository financial institution (including any holding company thereof)
that is not an affiliate of the Company and that is located or has an
office within a 50-mile radius of Glens Falls, New York.
(b) Change of Control. The Covenant Not to Compete shall not be
enforceable against the Executive in the event that either the Executive
is terminated by the Company, other than for Cause, following a Change in
Control or the Executive terminates his employment pursuant to Involuntary
Termination following a Change in Control, all as provided or defined in
Section 13 hereof.
(c) Injunctive Relief. Executive acknowledges that through his
employment with the Company he has and will have access to valuable
confidential information of the Company as well as the opportunity to
build good will among the Company's customer base and those of its
subsidiary banks. Executive acknowledges that the covenant not to compete
is a reasonable means of protecting and preserving the Company's
investment in Executive, its confidential information and customer good
will. Executive agrees that any breach of this covenant may result in
irreparable damage and injury to the Company, and that the Company will be
entitled to injunctive relief in any court of competent jurisdiction
without the necessity of posting any bond.
(d) Enforceability of Covenant. Executive and the Company agree that
Executive's obligations under the covenant not to compete is separate and
distinct from other provisions of this Agreement, and the failure or
alleged failure of the Company to perform its obligations under any other
provisions of this Agreement shall not constitute a defense to the
enforceability of this covenant not to compete.
11. Covenant Not to Solicit.
(a) Special Value of Executive's Services. The parties acknowledge:
(i) that the Company is engaged in the business of banking throughout the
northern part of the State of New York; (ii) that Executive's services
under this Agreement require special expertise and talent in the area of
management in the aforementioned business, (iii) that such expertise has
been built up over the years; (iv) that Executive has been well
compensated and will continue to be well compensated under this Agreement
for the expertise and knowledge which he possesses; and (v) that due to
Executive's special experience and talent, the loss of Executive's
services to the Company under this Agreement cannot be reasonably or
adequately compensated by damages in an action at law.
(b) Non-Solicitation of Customers. For a period of two (2) years
following the expiration or termination of this Agreement for any reason,
Executive shall not attempt to solicit or accept, directly or by assisting
others, any business from the customers or prospective customers of the
Company [or its subsidiary banks] whom Executive has served or solicited
on behalf of the Company during the course of his employment hereunder.
(c) Change of Control. The Covenant Not to Solicit shall not be
enforceable against the Executive in the event that either the Executive
is terminated by the Company, other than for Cause, following a Change in
Control or the Executive terminates his employment pursuant to Involuntary
Termination following a Change in Control, all as provided or defined in
Section 13 hereof.
(d) Injunctive Relief. Executive acknowledges that the covenant not
to solicit is a reasonable means of protecting and preserving the
Company's investment in Executive. Executive agrees that any breach of
this covenant may result in irreparable damage and injury to the Company,
and that the Company will be entitled to injunctive relief in any court of
competent jurisdiction without the necessity of posting any bond.
(e) Enforceability of Covenant. Executive and the Company agree that
Executive's obligations under the covenant not to solicit is separate and
distinct from other provisions of this Agreement, and the failure or
alleged failure of the Company to perform its obligations under any other
provisions of this Agreement shall not constitute a defense to the
enforceability of this covenant not to solicit.
12. Nondisclosure of Confidential Information.
(a) Confidential Information Defined. As used in this Agreement, the
term "Confidential Information" shall mean all information that is not
generally disclosed or known to persons not employed by the Company, and
shall include, without limitation, any customer lists or customer account
information of the Company and any non-public matters concerning the
financial affairs and management of the Company.
(b) Nondisclosure of Confidential Information. Throughout the term
of this Agreement and any renewal periods hereunder, and for a period of
two (2) years following the expiration or termination of this Agreement,
Executive shall not, either directly or indirectly, transmit or disclose
any Confidential Information to any person, concern or entity.
(c) Injunctive Relief. Executive acknowledges that the nondisclosure
covenant is a reasonable means of protecting and preserving the Company's
interests in the confidentiality of the Confidential Information.
Executive agrees that any breach of such covenant may result in
irreparable damage and injury to the Company and that the Company will be
entitled to injunctive relief in any court of competent jurisdiction
without the necessity of posting any bond.
(d) Enforceability of Covenants. Executive and the Company agree
that Executive's obligations under the nondisclosure covenant is separate
and distinct from other provisions of this Agreement, and the failure or
alleged failure of the Company to perform its obligations under any
provisions of this Agreement shall not constitute a defense to the
enforceability of the nondisclosure covenant.
13. Change in Control.
(a) Applicability. The provisions of this Section 13 shall be
effective immediately upon execution of this Agreement, but anything in
this Agreement to the contrary notwithstanding, the provisions of this
Section 13 shall not be operative unless, during the term of this
Agreement, there has been a Change in Control of the Company, as defined
in Subsection 13(b) below. Upon such a Change in Control of the Company
during the term of this Agreement, all of the provisions of this Section
13 shall become operative immediately.
(b) Definitions. "Board" or "Board of Directors" means the Board of
Directors of the Company.
"Cause" means, for purposes of this Section 13 only, either
(i) any act that constitutes, on the part of Executive, (A) fraud,
dishonesty, a felony or gross malfeasance of duty, and (B) that directly
results in a demonstrable, material injury to the Company; or
(ii) conduct by Executive in his office with the Company that is
grossly inappropriate and demonstrably likely the lead to a demonstrable,
material injury to the Company, as determined by the affirmative vote of
not less than that number of directors equal to two thirds of the entire
membership of the Board, whether or not present, acting reasonably in good
faith; provided, however, that in the case of (ii) above, such conduct
shall not constitute Cause unless the Board shall have delivered to
Executive notice setting forth with specificity (A) the conduct deemed to
qualify as Cause, (B) reasonable action that would remedy such objection,
and (C) a reasonable time (not less than thirty (30) days) within which
Executive may take such remedial action, and Executive shall not have
taken such specified remedial action within such specified reasonable
time. It is expressly understood that Executive's attention to matters not
directly related to the business of the Company, but consistent with the
terms of this Agreement, shall not provide a basis for termination for
Cause.
"Change of Control" means: An event of the nature that:
(i) Would be required to be reported in response to Item 1(a) of the
current report on Form F-3, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (henceforth the
"Exchange Act"); or
(ii) Results in a Change in Control of the Bank within the meaning of
the Change in Bank Control Act, as amended, and the Rules and Regulations
promulgated by the Federal Deposit Insurance Company (henceforth the
"FDIC") at 12 C.F.R. Section 303.4(a) as in effect on the date hereof; or
(iii) Without limitation such a Change in Control shall be deemed to
have occurred at such time as:
(A) Any "person" (as the term is used in Section 13(d) and 14(d) of
the Exchange Act), or group of persons acting in concert, is or becomes
the beneficial owner" (as defined in Rule 13d-3 under the Exchange Act)
directly or indirectly, of any class of equity securities of the Bank
representing 25% or more of a class of equity securities except for any
securities purchased by the Bank's employee stock ownership plan and
trust; or
(B) Individuals who constitute the Board on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the
date hereof whose election was approved by a vote of at least three-
quarters of the directors comprising the Incumbent Board, or whose
nomination for election by the Bank's shareholders was approved by the
same Committee serving under an Incumbent Board, shall be, for purposes of
this clause (B) considered as though he were a member of the Incumbent
Board; or
(C) A plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or similar transaction occurs in
which the Bank is not the resulting entity; or
(D) A proxy statement shall be distributed soliciting proxies from
stockholders of the Bank, by someone other than the current management of
the Bank, seeking stockholder approval of a plan or similar transaction
with one or more corporations as a result of which the outstanding shares
of the class of securities then subject to such plan or transaction are
exchanged for or converted into cash or property or securities not issued
by the Bank; or
(E) A tender offer is made for 25% or more of the voting securities
of the Bank then outstanding.
"Code" means the Internal Revenue Code of 1986, as amended.
"Compensation Committee" means the Human Resources and Nominating
Committee of the Board of Directors, or any successor committee.
"Disability" shall have the meaning assigned such term in Subsection
7(a) of this Agreement.
"Excess Severance Payment" shall have the same meaning as the term
"excess parachute payment" defined in Section 280G(b)(l) of the Code.
"Involuntary Termination" means termination of Executive's employment
by Executive following a Change in Control which, in the reasonable
judgment of Executive, is due to (i) a change of Executive's
responsibilities, position (including title, reporting relationships or
working conditions), authority or duties(including changes resulting from
the assignment to Executive of any duties inconsistent with his positions,
duties or responsibilities as in effect immediately prior to the Change in
Control); or (ii) a reduction in Executive's compensation or benefits as
in effect immediately prior to the Change in Control, or (iii) a forced
relocation of Executive outside the Glens Falls, New York metropolitan
area or significant increase in Executive's travel requirements.
Involuntary Termination does not include retirement (including early
retirement) within the meaning of the Company's retirement plan, or death
or Disability of Executive.
"Present Value" shall have the same meaning as provided in Section
280G(d)(4) of the Code.
"Severance Payment" shall have the same meaning as the term
"parachute payment" defined in Section 280GCb)(2) of the Code.
"Reasonable Compensation" shall have the same meaning as provided in
Section 280G(b)(4) of the Code.
(c) Benefits upon Termination of Employment Following a Change in
Control.
(i) Termination. Executive shall be entitled to, and the Company
shall pay or provide to Executive, the benefits described in Subsection
13(c)(ii) below if a Change in Control occurs during the term of this
Agreement and Executive's employment is terminated within two (2) years
following the Change in Control, either:
(A) by the Company (other than for Cause or by reason of Executive's
death or Disability) or
(B) by Executive pursuant to Involuntary Termination; provided,
however, that if:
(x) during the term of this Agreement there is a public announcement
of a proposal for a transaction that, if consummated, would constitute a
Change in Control or the Board receives and decides to explore an
expression of interest with respect to a transaction which, if
consuitunated, would lead to a Change in Control (either transaction being
referred to herein as the "Proposed Transaction"); and
(y) Executive's employment is thereafter terminated by the Company
other than for Cause or by reason of Executive's death or Disability; and
(z) the Proposed Transaction is consummated within one year after the
date of termination of Executive's employment, then, for the purposes of
this Agreement, a Change in Control shall be deemed to have occurred
during the term of this Agreement and the termination of Executive's
employment shall be deemed to have occurred within two (2) years following
a Change in Control.
(ii) Benefits to be Provided. If Executive becomes eligible for
benefits under Subsection 13(c)(i) above, the Company shall pay or provide
to Executive the benefits set forth in this Subsection 13(c)(ii).
(A) Salary. Executive will continue to receive his current Base
Compensation (subject to withholding of all applicable taxes and any
amounts referred to in (C) below) for a period of thirty-six (36) months
from his date of termination in the same manner as it was being paid as of
the date of termination; provided, however, that the salary payments
provided for hereunder shall be paid in a single lump sum payment, to be
paid not later than thirty (30) days after his termination of employment;
provided further, that the amount of such lump sum payment shall be
determined by taking the salary payments to be made and discounting them
to their Present Value. For purposes hereof, Executive's Base Compensation
shall be the highest rate in
effect during the six-month period prior to Executive's termination.
(B) Bonuses. Executive shall receive bonus payments from the Company
for the thirty-six (36) months following the month in which his employment
is terminated in an amount for each such month equal to one-twelfth of the
average of the bonuses paid to him for the two calendar years immediately
preceding the year in which such termination occurs. Any bonus amounts
that Executive had previously earned from the Company but which may not
yet have been paid as of the date of termination shall not be affected by
this provision. The bonus amounts determined herein shall be paid in a
single lump sum payment, to be paid not later than thirty (30) days after
termination of employment; provided, that the amount of such lump sum
payment shall be determined by taking the bonus payments (as of the
payment date) to be made and discounting them to their Present Value.
(C) Health and Life Insurance Coverage. The health and life
insurance benefits coverage provided to Executive at his date of
termination shall be continued at the same level and in the same manner as
if his employment had not terminated (subject to the customary changes in
such coverage's if Executive retires, reaches age 65 or similar events),
beginning on the date of such termination and ending on the date thirty-
six (36} months from the date of such termination. Any additional
coverage's Executive had at termination, including dependent coverage,
will also continued for such period at the same level and on the same
terms as provided to Executive immediately prior to his termination, to
the extent permitted by the applicable policies or contracts and with such
reasonable increases as applicable to other participants for the same or
similar coverage. Any costs Executive was paying for such coverage's at
the time of termination (plus reasonable increases as applicable to other
participants for the same or similar coverage) shall be paid by Executive
by separate check payable to the Company each month in advance. If the
terms of any benefit plan referred to in this Subsection do not permit
continued participation by Executive, then the Company will arrange for
other coverage, at its expense, providing substantially similar benefits
as it can find for other officers in similar position.
(D) Executive Retirement Plans. To the extent permitted by the
applicable plan, Executive will be fully vested in and will be entitled to
continue to participate, consistent with past practices, in all Executive
retirement plans, including the Supplemental Chief Executive Retirement
Plan, maintained by the Company in effect as of his date of termination.
(E) Effect of Lump Sum Payment. The lump sum payment under (A) or
(B) above shall not alter the amounts Executive is entitled to receive
under the benefit plans described in (C) and (D) above. Benefits under
such plans shall be determined as if Executive had remained employed and
received such payments over a period of thirty-six (36) months.
(F) Effect of Death or Retirement. The benefits payable or to be
provided under this Agreement shall cease in the event of Executive's
death or election to commence retirement benefits under the Company's
retirement plan.
(G) Limitation on Amount. Notwithstanding anything in this Agreement
to the contrary, any benefits payable or to be provided to Executive by
the Company or its affiliates, whether pursuant to this Agreement or
otherwise, which are treated as Severance Payments shall be modified or
reduced in the manner provided in (H) below to the extent necessary so
that the benefits payable or to be provided to Executive under this
Agreement that are treated as Severance Payments, as well as any payments
or benefits provided outside of this Agreement that are so treated, shall
not cause the Company to have paid an Excess Severance Payment. In
computing such amount, the parties shall take into account all provisions
of Internal Revenue Code Section 280G, including making appropriate
adjustments to such calculation for amounts established to be Reasonable
Compensation.
(H) Modification of Amount. In the event that the amount of any
Severance Payments that would be payable to or for the benefit of
Executive under this Agreement must be modified or reduced to comply with
this Subsection 13(c)(ii), Executive shall direct which Severance Payments
are to be modified or reduced; provided, however, that no increase in the
amount of any payment or change in the timing of the payment shall be made
without the consent of the Company.
(I) Avoidance of Penalty Taxes. This Subsection 13(c)(ii) shall be
interpreted so as to avoid the imposition of excise taxes on Executive
under Section 4999 of the Code or the disallowance of a deduction to the
Company pursuant to Section 280G(a) of the Code with respect to amounts
payable under this Agreement or otherwise.
(J) Additional Limitation. In addition to the limits otherwise
provided in this Subsection 13(c)(ii), to the extent permitted by law,
Executive may in his sole discretion elect to reduce any payments he may
be eligible to receive under this Agreement to prevent the imposition of
excise taxes on Executive under Section 4999 of the Code.
(K) Rabbi Trust. In order to fund the Company's obligations under
this Section 13, the Company agrees to create a rabbi trust (in a form
mutually acceptable to the Company and Executive) with an independent
trustee and to fund such trust prior to the effective date of a Change in
Control. Except to the extent of funds available under such rabbi trust,
the agreement of the Company (or its successor) to make payments to
Executive hereunder shall represent solely the unsecured Obligation of the
Company (and its successor).
14. Regulatory Intervention. Notwithstanding any term of this
Agreement to the contrary, this Agreement is subject to the following
terms and conditions:
(a) The Company's obligations to provide compensation or other
benefits to Executive under this Agreement may be suspended if the Company
has been served with a notice of charges by the appropriate federal
banking agency under provisions of Section 8 of the Federal Deposit
Insurance Act (12 U.S.C. 1818) directing the Company to cease making
payments required hereunder; provided, however, that
(i) The Company shall seek in good faith with its best efforts to
oppose such notice of charges as to which there are reasonable defenses;
(ii) In the event the notice of charges is dismissed or otherwise
resolved in a manner that will permit the Company to resume its
obligations to provide compensation or other benefits hereunder, the
Company shall immediately resume such payments and shall also pay
Executive the compensation withheld while the contract obligations were
suspended, except to the extent precluded by such notice; and
(iii) During the period of suspension, the vested rights of the
contracting parties shall not be affected, except to the extent precluded
by such notice.
(b) The Company's obligations to provide compensation or other
benefits to Executive under this Agreement shall be terminated to the
extent a final order has been entered by the appropriate federal banking
agency under provisions of Section 8 of the Federal Deposit Insurance Act
(12 U.S.C. 1818) directing the Company not to make the payments required
hereunder; provided, however, that the vested rights of the contracting
parties shall not be affected by such order, except to the extent
precluded by such order.
(c) The Company's obligations to provide compensation or other
benefits to Executive under this Agreement shall be terminated or limited
to the extent required by the provisions of any final regulation or order
of the Federal Deposit Insurance Corporation promulgated under Section
18(k) of the Federal Deposit Insurance Act (12 U.S.C. 1828(k)) limiting or
prohibiting any "golden parachute payment" as defined therein, but only to
the extent that the compensation or payments to be provided under this
Agreement are so prohibited or limited.
(d) Notwithstanding the foregoing, the Company shall not be required
to make any payments under this Agreement prohibited by law.
15. Indemnification. The Company will indemnify Executive (and his
legal representatives or other successors) to the fullest extent permitted
(including payment of expenses in advance of final disposition of a
proceeding) by the laws of the State of New York, as in effect at the time
of the subject act or omission, or the Restated Certificate of
Incorporation and Bylaws of the Company, as in effect at such time or on
the effective date of this Agreement, whichever affords or afforded
greater protection to Executive, and Executive shall be entitled to the
protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers, against all
costs, charges and expenses whatsoever incurred or sustained by him or his
legal representatives at the time such costs, charges and expenses are
incurred or sustained, in connection with any action, suit or proceeding
to which he (or his legal representatives or other successors) may be made
a party by reason of his being or having been a director, officer or
employee of the Company or any subsidiary, or his serving or having served
any other enterprise as a director, officer or employee at the request of
the Company.
16. Litigation Expenses. In the event of any litigation, arbitration
or other proceeding between the Company and Executive with respect to the
subject matter of this Agreement or the enforcement of his rights
hereunder, the Company shall reimburse Executive, but only if he is
substantially successful in such proceeding, for all of his reasonable
costs and expenses relating to such litigation, arbitration or other
proceeding, including, without limitation, his reasonable attorneys' fees
and expenses. In no event shall Executive be required to reimburse the
Company for any of the costs and expenses relating to such litigation,
arbitration or other proceeding.
17. Miscellaneous
(a) Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms
and conditions of this Agreement shall not be deemed a waiver or
relinquishment of any right granted in this Agreement or of the future
performance of any such term or condition or of any other term or
condition of this Agreement, unless such waiver is contained in a writing
signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part thereof,
of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability
of the remaining provisions or covenants, or any part thereof, of this
Agreement, all of which shall remain in full force and effect.
(c) Assignability. The parties acknowledge that this Agreement has
been entered into due to, among other things, the special skills of
Executive, and agree that this Agreement may not be assigned or
transferred by Executive, in whole or in part, without the prior written
consent of the Company. Any business entity succeeding to all or
substantially all of the business of the Company by purchase, merger,
consolidation, sale of assets or otherwise, shall be bound by this
Agreement.
(d) Other Agents. Nothing in this Agreement is to be interpreted as
limiting the Company from employing other personnel on such terms and
conditions as may be satisfactory to the Company.
(e) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes any prior agreements or understandings between the parties
with respect to such subject matter.
(f) Governing Law. The validity and effect of this Agreement shall
be governed by and construed and enforced in accordance with the laws of
the State of New York.
(g) Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to
have been duly given if delivered or seven days after mailing if mailed,
first class, certified mail, postage prepaid:
To the Company: Evergreen Bancorp, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
Attention: Secretary
To Executive: Xx. Xxxxxx X. Xxxxxx
000 Xxxx Xxxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
Any party may change the address to which notices, requests, demands
and other communications shall be delivered or mailed by giving notice
thereof to the other party in the same manner provided herein.
(h) Amendments and Modifications. This Agreement may be amended or
modified only by a writing signed by both parties hereto, which make
specific reference to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Employment Agreement as of the date first above written.
EVERGREEN BANCORP, INC.
By:/S/ Xxxxxx Xxxxxx
Title:Chairman, Human Resource
and Nominating Committee
Attest:
By:/S/Xxxxxxx X. Xxxxxx
Title:Executive Vice President
(CORPORATION SEAL)
/S/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
B:1DOU-A,15
