EXHIBIT 10.5
EMPLOYMENT AGREEMENT FOR XXXXX X. XXXXXXXXXXX
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of October 1, 1999, by and
between FALMOUTH BANCORP, INC. (the "Company"), and XXXXX X. XXXXXXXXXXX
(the "Executive"). Any reference to the "Bank" herein shall mean Falmouth
Co-operative Bank, a wholly-owned subsidiary of the Company, or any
successor thereto.
WHEREAS, the Company wishes to assure itself and for the Bank of the
services of Executive for the period provided in this Agreement; and
WHEREAS, the Executive is willing to serve in the employ of the
Company and the Bank on a full-time basis for said period.
WHEREAS, the Bank and the Executive are parties to an employment
agreement made and entered into as of March 27, 1998 ("Prior Agreement")
and the Company and the Executive desire to enter into a new agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided,
the parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to
serve as President and Chief Executive Officer of the Company and President
and Chief Executive Officer of the Bank. During said period, Executive also
agrees to serve, if elected, as a director of the Company and/or the Bank,
and/or as an officer and director of any subsidiary or affiliate of the
Company.
2. TERMS AND DUTIES.
(a) The term of this Agreement shall be deemed to have commenced as
of the date first above written and shall continue for a period of forty-
eight (48) full calendar months thereafter. Commencing on the first
anniversary date, and continuing at each anniversary date thereafter, the
Board of Directors of the Bank (the "Board") may extend the Agreement for
an additional year. Prior to the extension of the Agreement as provided
herein, the Board of Directors of the Bank will conduct a formal
performance evaluation of the Executive for purposes of determining whether
to extend the Agreement, and the results thereof shall be included in the
minutes of the Board's meeting.
(b) Nothing in this Agreement shall be deemed to prohibit the
Company at any time from terminating Executive's employment during the
Employment Period with or without notice for any reason; provided, however,
that the relative rights and obligations of the Company and Executive in
the event of any such termination shall be determined under this Agreement.
(c) Nothing in this Agreement shall be deemed to prohibit the
Executive at any time from terminating his employment during the Employment
Period with or without notice for any reason; provided, however, that the
relative rights and obligations of the Company and Executive in the event
of any such termination shall be determined under this Agreement.
(d) During the period of his employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Executive shall devote substantially all his
business time, attention, skill, and efforts to the faithful performance of
his duties hereunder including activities and services related to the
organization, operation and management of the Company and the Bank;
provided, however, that, with the approval of the Board, as evidenced by a
resolution of such Board, from time to time, Executive may serve, or
continue to serve, on the boards of directors of , and hold any other
offices or positions in, companies or organizations which, in such Board's
judgment, will not present any conflict of interest with the Company or the
Bank, or materially affect the performance of Executive's duties pursuant
to this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute
the salary and benefits paid for the duties described in Sections 1 and 2.
The Company shall pay (or shall cause the Bank to pay) Executive as
compensation a salary of $145,392.00 per year ("Base Salary") . Such Base
Salary shall be payable weekly. During the period of this Agreement,
Executive's Base Salary shall be reviewed at least annually; the first such
review will be made no later than one year from the date of this Agreement.
Such review shall be conducted by a Committee designated by the Board.
Executive's salary may be increased annually as of the first payroll period
ending in the first week of October of each year during the term of this
Agreement by such additional amount as may be determined by the Board. The
salary of the Employee shall not be decreased at any time during the term
of this Agreement from the amount then in effect, unless the Employee
otherwise agrees in writing. The Employee shall not be entitled to receive
fees for serving as a director of the Company or the Bank or any subsidiary
of the Company or the Bank, or for serving as a member of any committee of
the Board of Directors of the Company or the Bank or of any subsidiary of
the Company or the Bank. In addition to the Base Salary provided in this
Section 3 (a), Executive shall be entitled to participate in an equitable
manner with all other executive officers in discretionary bonuses as may be
authorized, declared and paid by the Board to executive officers during the
term of this Agreement. The Company shall also provide (or cause the Bank
to provide) Executive at no cost to Executive with all such other benefits
as are provided uniformly to permanent full-time employees of the Company
and the Bank.
(b) The Company will provide (or cause the Bank to provide)
Executive with employee benefit plans, arrangements and perquisites
substantially equivalent to those in which Executive was participating or
otherwise deriving benefit from immediately prior to the beginning of the
term of this Agreement, and the Company and the Bank will not, without
Executive's prior written consent, make any material changes in such plans,
arrangements or perquisites which would adversely affect Executive's rights
or benefits thereunder. Without limiting the generality of the foregoing
provisions of this Subsection (b), Executive will be entitled to
participate in or receive benefits under any employee benefit plans
including, but not limited to, retirement plans, supplemental retirement
plans, pension plans, profit-sharing plans, health and accident plan,
medical coverage or any other employee benefit plan or arrangement made
available by the Company and the Bank in the future to its senior
executives and key management employees, subject to, and on a basis
consistent with, the terms, conditions and overall administration of such
plans and arrangements. Executive will be entitled to incentive
compensation and bonuses as provided in any plan, or pursuant to any
arrangement of the Company and the Bank, in which Executive is eligible to
participate. Nothing paid to the Executive under any such plan or
arrangement will be deemed to be in lieu of other compensation to which the
Executive is entitled under this Agreement, except as provided under
Section 5(e).
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3, the Company shall pay or reimburse Executive for all
reasonable travel and other obligations under this Agreement and may
provide such additional compensation in such form and such amounts as the
Board may from time to time determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein
defined) during the Executive's term of employment under this Agreement,
the provisions of this Section shall apply. As used in this Agreement, an
"Event of Termination" shall mean and include any one or more of the
following: (i) the termination by the Company or the Bank of Executive's
full-time employment hereunder for any reason other than a Change in
Control, as defined in Section 5(a) hereof; disability, as defined in
Section 6(a) hereof; death; retirement, as defined in Section 7 hereof; or
for Cause, as defined in Section 8 hereof; (ii) Executive's resignation
from the Bank's employ, upon (A) unless consented to by the Executive, a
material change in Executive's function, duties, or responsibilities, which
change would cause Executive's position to become one of lesser
responsibility, importance, or scope from the position and attributes
thereof described in Sections 1 and 2, above (any such material change
shall be deemed a continuing breach of this Agreement), (B) a relocation of
Executive's principal place of employment by more than 35 miles from its
location at the effective date of this Agreement, or a material reduction
in the benefits and perquisites to the Executive from those being provided
as of the effective date of this Agreement, (C) the liquidation or
dissolution of the Company or the Bank, or (D) any breach of this Agreement
by the Company. Upon the occurrence of any event described in clauses (A),
(B), (C), or (D), above, Executive shall have the right to elect to
terminate his employment under this Agreement by resignation upon not less
than sixty (60) days prior written notice given within a reasonable period
of time not to exceed, except in case of a continuing breach, four calendar
months after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Company
shall pay Executive or, in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both, a sum equal to the payments
due to the Executive for the remaining term of the Agreement, including
Base Salary, bonuses, and any other cash or deferred compensation paid or
to be paid (including the value of employer contributions that would have
been made on the Executive's behalf over the remaining term of the
agreement to any tax-qualified retirement plan sponsored by the Bank or the
Company as of the Date of Termination), to the Executive for the term of
the Agreement provided, however, that if the Bank is not in compliance with
its minimum capital requirements or if such payments would cause the Bank's
capital to be reduced below its minimum capital requirements, such payments
shall be deferred until such time as the Bank is in capital compliance. All
payments made pursuant to this Section 4 (b) shall be paid in substantially
equal monthly installments over the remaining term of this Agreement
following the Executive's termination; provided, however, that if the
remaining term of the Agreement is less than one (1) year (determined as of
the Executive's Date of Termination), such payments and benefits shall be
paid to the Executive in a lump sum within 30 days of the Date of
Termination.
(c) Upon the occurrence of an Event of Termination, the Company will
cause to be continued life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Company or the
Bank for Executive prior to his termination. Such coverage shall cease upon
the expiration of the remaining term of this Agreement.
5. CHANGE IN CONTROL.
(a) No benefit shall be payable under this Section 5 unless there
shall have occurred a Change in Control of the Company, as set forth below.
For purposes of this Agreement, a "Change in Control" of the Company shall
mean an event of a nature that: (i) it would be required to be reported in
response to Item 1(a) of the current report on Form 8-K, as in effect on
the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii) 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 Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the Company's outstanding securities except for
any securities purchased by the Company's employee stock ownership plan and
trust; or (b) individuals who constitute the Board of the Company 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 Company's stockholders was approved by
the same Nominating 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 Company
or similar transaction in which the Company is not the resulting entity
occurs; (iii) any event which would be described in (i) or (ii) above if
the term "Bank" were substituted for the term "Company" therein or any
event that results in a Change in Control of the Bank within the meaning of
the Change in Bank Control Act and the Rules and Regulations promulgated by
the Federal Deposit Insurance Agency ("FDIC") or the Massachusetts Division
of Banks, as in effect on the date hereof (provided that in applying the
definition of change in control as set forth in the rules and regulations
of the FDIC, the Board of the Company and the Bank shall substitute their
judgment for that of the FDIC).
In no event, however, shall a Change in Control be deemed to have
occurred as a result of any acquisition of securities or assets of the
Company, the Bank, or a subsidiary of either of them, by the Company, the
Bank, or a subsidiary of either of them, or by any employee benefit plan
maintained by any of them.
(b) If any of the events described in section 5(a) hereof
constituting a Change in Control have occurred or the Board has determined
that a Change in Control has occurred, Executive shall be entitled to the
benefits provided in paragraphs (c), (d) and (e) of this Section 5 upon his
subsequent termination of employment at any time during the term of this
Agreement (regardless of whether such termination results from his
dismissal or his resignation at any time during the term of this
Agreement), unless such termination is because of his death, retirement as
provided in Section 7, termination for Cause, or termination for
Disability.
(c) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Company shall pay (or shall
cause the Bank to pay) Executive, or in the event of his subsequent death,
his beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both, a sum equal to 2.99 times the
Executive's "base amount," within the meaning of [SECTION] 280G(b)(3) of the
Internal Revenue Code of 1986. Such payment shall be made in a lump sum
paid within ten (10) days of the Executive's Date of Termination.
(d) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Company will cause to be
continued life, medical, dental and disability coverage substantially
identical to the coverage maintained by the Company or the Bank for
Executive prior to his severance. In addition, Executive shall be entitled
to receive the value of employer contributions that would have been made on
the Executive's behalf over the remaining term of the agreement to any tax-
qualified retirement plan sponsored by the Company or the Bank as of the
Date of Termination. Such coverage and payments shall cease upon the
expiration of forty-eight (48) months.
(e) Upon the occurrence of a Change in Control, the Executive shall
be entitled to receive benefits due him under, or contributed by the
Company and the Bank on his behalf, pursuant to any retirement, incentive,
profit sharing, bonus, performance, disability or other employee benefit
plan maintained by the Company and the Bank on the Executive's behalf to
the extent that such benefits are not otherwise paid to the Executive upon
a Change in Control.
6. TERMINATION FOR DISABILITY.
(a) If, as a result of Executive's incapacity due to physical or
mental illness, he shall have been absent from his duties with the Company
or the Bank on a full-time basis for six (6) consecutive months, and within
thirty (30) days after written notice of potential termination is given, he
shall not have returned to the full-time performance of his duties, the
Company or the Bank may terminate Executive's employment for "Disability."
(b) The Company will pay (or cause the Bank to pay) Executive, as
disability pay, a payment equal to three-quarters (3/4) of Executive's
weekly rate of Base Salary on the effective date of such termination. These
disability payments shall commence on the effective date of Executive's
termination and will end on the earlier of (i) the date Executive returns
to the full-time employment of the Company or the Bank in the same capacity
as he was employed prior to his termination for Disability and pursuant to
an employment agreement between Executive and the Company or the Bank; (ii)
Executive's full-time employment by another employer; (iii) Executive
attaining the age of 65; (iv) Executive's death; or (v) the expiration of
the term of this Agreement. The disability pay shall be reduced by the
amount, if any, paid to the Executive under any plan of the Company or the
Bank providing disability benefits to the Executive.
(c) The Company will cause (or will cause the Bank) to be continued
life, medical, dental and disability coverage substantially identical to
the coverage maintained by the Company or Bank for Executive prior to his
termination for Disability. This coverage and payments shall cease upon the
earlier of (i) the date Executive returns to the full-time employment of
the Company or the Bank, in the same capacity as he was employed prior to
his termination for Disability and pursuant to an employment agreement
between Executive and the Company or the Bank; (ii) Executive's full-time
employment by another employer; (iii) Executive's attaining the age of 65;
(iv) the Executive's death; or (v) the expiration of the term of this
Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period during which
Executive is incapable of performing his duties hereunder by reason of
temporary disability.
7. TERMINATION UPON RETIREMENT; DEATH OF THE EXECUTIVE.
Termination by the Company or Bank of the Executive based on
"Retirement" shall mean retirement at age 65 or in accordance with any
retirement arrangement established with Executive's consent with respect to
him. Upon termination of Executive upon Retirement, Executive shall be
entitled to all benefits under any retirement plan of the Company or the
Bank and other plans to which Executive is a party. Upon the death of the
Executive during the term of this Agreement, the Company shall pay (or
cause the Bank to pay) to the Executive's estate the compensation due to
the Executive through the last day of the calendar month in which his death
occurred.
8. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination upon
intentional failure to perform stated duties, personal dishonesty which
results in loss to the Company, the Bank or one of its affiliates, willful
violation of any law, rule, regulation (other than traffic violations or
similar offenses), or final cease and desist order concerning conduct which
results in substantial loss to the Company, the Bank or one of its
affiliates, or any material breach of this Agreement. For purposes of this
Section, no act, or the failure to act, on Executive's part shall be
"willful" unless done, or omitted to be done, not in good faith and without
reasonable belief that the action or omission was in the best interest of
the Company, the Bank or its affiliates. Notwithstanding the foregoing,
Executive shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to him a copy of a resolution duly
adopted by the affirmative vote of not less than three-fourths of the
members of the Board at a meeting of the Board called and held for that
purpose (after reasonable notice to Executive and an opportunity for him,
together with counsel, to be heard before the Board), finding that in the
good faith opinion of the Board, Executive was guilty of conduct justifying
termination for Cause and specifying the reasons thereof. The Executive
shall not have the right to receive compensation or other benefits for any
period after termination for Cause. Any stock options granted to Executive
within the twelve months prior to termination for Cause under any stock
option plan or any unvested awards granted under any other stock benefit
plan of the Company, shall become null and void effective upon Executive's
receipt of Notice of Termination for Cause pursuant to Section 10 hereof,
and shall not be exercisable by Executive at any time subsequent to such
Termination for Cause.
9. REQUIRED PROVISIONS.
(a) The Company or Bank may terminate the Executive's employment at
any time, but any termination by the Company or the Bank, other than
Termination for Cause, shall not prejudice Executive's right to
compensation or other benefits under this Agreement. Executive shall not
have the right to receive compensation or other benefits for any period
after Termination for Cause as defined in Section 8 herein.
(b) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. 1818(e)(3) and (g)(1)), the Bank's obligations under the Agreement
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may, in
its discretion, (i) pay the Executive all or part of the compensation
withheld while its contract obligations were suspended and (ii) reinstate
(in whole or in part) any of its obligations that were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the FDIA (12 U. S. C. 1818(e)(4) or (g)(1)) ,
all obligations of the Bank under the Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties
shall not be affected.
(d) If the Bank is in default (as defined in Section 3(x)(1) of the
FDIA) , all obligations under this Agreement shall terminate as of the date
of default, but this paragraph shall not affect any vested rights of the
parties.
(e) All obligations under this Agreement may be terminated: (i) by
the Commissioner of Banks (the "Commissioner") or his or her designee at
the time the Federal Deposit Insurance Corporation enters into an agreement
to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the FDIA and (ii) by the Commissioner, or his
or her designee at the time the Director or such designee approves a
supervisory merger to resolve problems related to operation of the Bank or
when the Bank is determined by the Commissioner or the FDIC to be in an
unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
(f) Any payments made to the Executive pursuant to this Agreement,
or otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
[SECTION] 1828(k) and any regulations promulgated thereunder.
10. NOTICE.
(g) Any purported termination by the Company or the Bank or by
Executive shall be communicated by Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a written notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated.
(h) "Date of Termination" shall mean (A) if Executive's employment
is terminated for Disability, thirty (30) days after a Notice of
Termination is given (provided that he shall not have returned to the
performance of his duties on a full-time basis during such thirty (30) days
period), and (B) if his employment is terminated for any other reason, the
date specified in the Notice of Termination (which, in the case of a
Termination for Cause, shall not be less than thirty (30) days from the
date such Notice of Termination is given).
(i) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other
party that a dispute exists concerning the termination, except upon the
occurrence of a Change in Control and voluntary termination by the
Executive in which case the Date of Termination shall be the date specified
in the Notice, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of the
parties, by a binding arbitration award, or by a final judgment, order or
decree of a court of competent jurisdiction (the time for appeal therefrom
having expired and no appeal having been perfected) and provided further
that the Date of Termination shall be extended by a notice of dispute only
if such notice is given in good faith and the party giving such notice
pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company will continue
to pay (or cause the Bank to pay) Executive his full compensation in effect
when the notice giving rise to the dispute was given (including, but not
limited to, Base Salary) and continue him as a participant in all
compensation, benefit and insurance plans in which he was participating
when the notice of dispute was given, until the dispute is finally resolved
in accordance with this Agreement. Amounts paid under this Section are in
addition to all other amounts due under this Agreement and shall not be
offset against or reduce any other amounts due under this Agreement.
11. CONFIDENTIALITY.
Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Company, the
Bank and affiliates thereof, as it may exist from time to time, is a
valuable, special and unique asset of the business of the Company.
Executive will not, during or after the term of his employment, disclose
any knowledge of the past, present, planned or considered business
activities of the Company, the Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever.
Notwithstanding the foregoing, Executive may disclose any knowledge of
banking, financial and/or economic principles, concepts or ideas which are
not solely and exclusively derived from the business plans and activities
of the Company. In the event of a breach or threatened breach by the
Executive of the provisions of this Section, the Company will be entitled
to an injunction restraining Executive from disclosing, in whole or in
part, the knowledge of the past, present, planned or considered business
activities of the Company or affiliates thereof, or from rendering any
services to any person, firm, corporation, or other entity to whom such
knowledge, in whole or in part, has been disclosed or is threatened to be
disclosed. Nothing herein will be construed as prohibiting the Company from
pursuing any other remedies available to the Company for such breach or
threatened breach, including the recovery of damages from Executive.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all
prior agreements, understandings or representations relating to the subject
matter hereof, including all terms of the Prior Agreement between the Bank
and Executive. No provision of this Agreement shall be interpreted to mean
that Executive is subject to receiving fewer benefits than those available
to him without reference to this Agreement.
13. NO ATTACHMENT.
Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and
any attempt, voluntary or involuntary, to affect any such action shall be
null, void, and of no effect.
14. MODIFICATION AND WAIVER.
(j) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(k) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party
charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each
such waiver shall operate only as to the specific term or condition waived
and shall not constitute a waiver of such term or condition for the future
as to any act other than that specifically waived.
15. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of
any provision, is held invalid, such invalidity shall not affect any other
provision of this Agreement or any part of such provision not held so
invalid, and each such other provision and part thereof shall to the full
extent consistent with law continue in full force and effect.
16. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely
for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
17. GOVERNING LAW.
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, unless otherwise specified herein.
18. INDEMNIFICATION.
The Company shall provide (or shall cause the Bank to provide)
Executive (including his heirs, executors and administrators) with coverage
under a standard directors' and officers', liability insurance policy at
its expense, or in lieu thereof, shall indemnify Executive (and his heirs,
executors and administrators) to the fullest extent permitted under law
against all expenses and liabilities reasonably incurred by him in
connection with or arising out of any action, suit or proceeding in which
he may be involved by reason of his having been a director or officer of
the Company or the Bank (whether or not he continues to be a director or
officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgment, court
costs and attorneys' fees and the cost of reasonable settlements.
19. NON-DUPLICATION.
In the event that Executive shall perform services for the Bank or
any other direct or indirect subsidiary of the Company, any compensation or
benefits provided to Executive by such other employee shall be applied to
offset the obligations of the Company hereunder, it being intended that
this Agreement set forth the aggregate compensation and benefits payable to
Executive for all services to the Company and all of its direct or indirect
subsidiaries, including the Bank.
20. COMPANY AND AFFILIATES.
The Company may satisfy its obligations under this Agreement either
directly or indirectly through one or more direct or indirect subsidiaries
or affiliates. The Executive agrees that this Agreement requires that the
Executive make his services available to the Company, the Bank and their
respective direct or indirect subsidiaries or affiliates as determined by
the respective Boards of Directors of the Company and the Bank within the
terms and conditions set forth in this Agreement.
21. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon
Executive, his legal representatives and testate or intestate distributees,
and the Company and its successors and assigns, including any successor by
merger or consolidation or a statutory receiver or any other person or firm
or corporation to which all or substantially all of the assets and business
of the Company may be sold or otherwise transferred. Failure of the
Company to obtain from any successor its express written assumption of the
Company's obligations hereunder at least sixty (60) days in advance of the
scheduled effective date of any such succession shall be deemed a material
breach of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its seal to be affixed hereunto by its duly authorized
officers and directors, and Executive has signed this Agreement, on the
date first indicated above.
ATTEST: FALMOUTH BANCORP, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------ ---------------------------
(SEAL) Xxxxxx X. Xxxxxx
Chairman, Board of Directors
/s/ Xxxxx X. Xxxxxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxxxxx
President and Chief Executive
Officer
