EXHIBIT 10.2
AMENDED EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into, effective as of the __15th____ day
of _November_, 2005 by and between The Simsbury Bank & Trust Company ("Bank")
and Xxxxxxx X. Xxxxxx ("Executive").
W I T N E S S E T H :
WHEREAS, Executive has been employed as Executive Vice President and Chief
Lending Officer of the Bank under an existing Employment Agreement; and
WHEREAS, Bank and Executive desire to enter into this Amended Employment
Agreement ("Agreement") on the terms herein set forth;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
herein contained, the parties hereto, intending to be legally bound, do hereby
mutually covenant and agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:
(a) "Cause" shall mean:
(i) Executive's conviction of, or plea of nolo contendere to, a
felony or crime involving moral turpitude;
(ii) Executive's commission of an act of personal dishonesty or
breach of fiduciary duty, whether or not involving personal profit, in
connection with Executive's employment by Bank or any other organization of
public trust;
(iii) Executive's commission of an act which the Board of
Directors of Bank by a vote of at least two-thirds (2/3) of all of the Directors
shall have found to have involved willful misconduct or gross negligence on the
part of Executive, in the conduct of his duties or public life or which causes
material embarrassment to the Bank;
(iv) Habitual absenteeism, chronic alcoholism or any other form
of addiction on the part of Executive which prevents him from performing the
essential functions of his position with or without reasonable accommodation; or
(v) Entry of any final order of a regulatory authority having
jurisdiction over Bank directing the removal of Executive from office.
(b) "Disability" shall mean the incapacity of Executive by illness or
any other cause as determined under the long-term disability insurance Plan of
Bank in effect at the time in question, or if no such plan is in effect, then
such incapacity of Executive as prevents Executive from performing the essential
functions of his position with or without reasonable accommodation for a period
in excess of two hundred forty days (whether or not consecutive), or one hundred
eighty days consecutively, as the case may be, during any twelve month period.
(c) "Good Reason" shall mean the occurrence of any action which (i)
removes or changes Executive's title or reduces Executive's job responsibilities
or base salary (except pursuant to a general reduction of not more than ten
percent (10%) in executive base salaries effected throughout the Bank; or (ii)
moves Executive's place of employment to a location that increases Executive's
commute by more than thirty (30) miles over the length of Executive's commute
from his place of principal residence at the time the move is requested.
(d) "Material Breach" by Executive shall mean a determination by vote
of at least two-thirds (2/3) of all of the Directors of Bank, that Executive
shall have failed to comply in any material respect with his obligations under
this Agreement following written notice to Executive of the alleged deficiencies
thereunder and a period of 30 days to cure such deficiencies (the existence of
which shall be confirmed by the foregoing required vote). Any determination in
accordance with the preceding sentence shall be conclusive and binding for all
purposes of this Agreement.
2. Employment. Bank hereby agrees to employ Executive as Executive Vice
President and Chief Lending Officer of Bank and Executive accepts said
employment and agrees to serve for the Term of this Agreement in such capacity
upon the terms and conditions hereinafter set forth. Subject to the provisions
of Paragraph 6 below, "Term" shall mean the period commencing on the effective
date of this Agreement and ending on August 31, 2006.
3. Duties of Employment.
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(a) During the Term, Executive will serve as Executive Vice President
and Chief Lending Officer of Bank, subject to the terms of this Employment
Agreement and the direction and control of the President and the Board of
Directors. During the Term, Executive will serve Bank faithfully, diligently and
competently and will devote full-time to his employment and will hold, in
addition to the offices of Executive Vice President and Chief Lending Officer of
Bank, such other executive offices of Bank, or its subsidiaries and affiliates,
to which he may be elected, appointed or assigned by the President or the Board
of Directors of Bank from time to time and will discharge such executive duties
in connection therewith. Nothing in this Agreement shall preclude Executive,
with the prior approval of the President or the Board of Directors, from
devoting reasonable periods of time required for (i) serving as a director or
member of a committee of any organization involving no conflict of interest with
Bank, or (ii) engaging in charitable, religious and community activities,
provided, that such directorships, memberships or activities do not materially
interfere with the performance of his duties hereunder.
4. Compensation. During the Term, Bank shall pay to Executive as
compensation for the services to be rendered by him hereunder the following:
(a) A base salary at the rate of $114,022 per year, or such larger
sum as the Board of Directors of Bank may from time to time determine in
connection with regular periodic performance reviews pursuant to Bank's policies
and practices. Such compensation shall be payable in accordance with normal
payroll practices of Bank.
(b) In addition, Executive may be entitled to a bonus, payable in
cash or other form of compensation, at the end of each calendar year during such
Term in an amount and form set by the Board of Directors of Bank. The Board of
Directors may establish one or more individual or corporate goals for each such
year, the achievement of which may be made a condition to the payment of the
foregoing bonus to Executive. Such goals shall be communicated to Executive and
shall be stated to be a condition to payment of said bonus.
5. Benefits. During the Term, Executive shall be entitled to the
following benefits:
(a) Comprehensive health insurance and major medical coverage
comparable to such coverage provided for executive employees of Bank generally
in compliance with plans or practices in effect at Bank.
(b) Participation in any long-term disability insurance plan and
pension plan maintained by Bank, in accordance with the terms thereof, as may be
in effect from time to time.
(c) A vacation of at least four weeks per year, during which
Executive's compensation shall be paid in full. Vacation time which is not taken
by Executive in any year may be deferred and taken in the first quarter of the
following vacation year.
(d) Reimbursement of all travel and other reasonable business
expenses incident to the rendering of services by Executive hereunder subject to
the submission of appropriate vouchers and receipts in accordance with Bank's
policy from time to time in effect.
6. End of Term. The Term shall end upon the occurrence of any of the
following events:
(a) The expiration of the Term as provided for in Paragraph 2.
(b) Termination of Executive's employment by Bank for "Cause."
(c) The voluntary termination of Executive's employment by Executive
other than for "Good Reason."
(d) The Disability of Executive. If this Agreement is terminated by
reason of the Disability of the Executive, Bank shall give written notice to
that effect to Executive in the manner provided in Paragraph 14 herein.
(e) The death of Executive.
7. Payment Upon Termination.
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(a) If Executive's employment is terminated by Bank for "Cause," as
defined in Paragraph 1(a), the obligations of Bank under this Agreement shall
cease and Executive shall forfeit all right to receive any compensation or other
benefits under this Agreement except only salary and reimbursable expenses
accrued through the date of such termination.
(b) If Executive shall voluntarily terminate his employment during
the Term other than for "Good Reason," as defined in Paragraph 1(c), the
obligations of Bank under this Agreement shall cease and Executive shall forfeit
all right to receive any compensation or other benefits under this Agreement
except only salary and reimbursable expenses accrued through the date of such
termination.
(c) If Executive's employment is terminated by reason of Disability
or death, the obligations of Bank under this Agreement shall cease and Executive
shall forfeit all right to receive any compensation or other benefits under this
Agreement except only salary and reimbursable expenses accrued through the date
of such retirement.
(d) If Executive's employment is terminated by Bank during the Term
for any reason other than for "Cause," or "Disability," or if Executive shall
voluntarily terminate his employment during the Term for "Good Reason,"
Executive shall be entitled to receive, and Bank shall be obligated to pay and
provide Executive, the following amounts:
(i) The base salary of Executive, at the rate in effect
immediately prior to Executive's termination, for a period of six months
following termination, from which shall be subtracted the amount, if any,
payable to Executive under any then effective severance pay plan of Bank,
payable in accordance with normal payroll practices of Bank, or at Executive's
option the commuted value (determined by discounting all payments at a rate
equal to the bond equivalent yield of the latest three-month Treasury Xxxx
auction) of such salary to be paid in cash in a lump sum in the month next
following Executive's termination of employment and to be treated as a
supplemental wage payment under applicable Treasury Regulations subject to
federal tax withholding at the flat percentage rate applicable thereto;
(ii) A payment equal to one-half of the 2005 annual bonus
received by Executive;
(iii) To the extent that any form of compensation previously
granted to Executive, such as, by way of example only, stock option awards,
shall not be fully vested or shall require additional service as an employee at
the time of the termination of Executive's employment, Executive shall be
credited with additional service for such purpose through the end of the
six-month period following Executive's termination.
(iv) During the period of eighteen months following Executive's
termination of employment (or such other period as shall be prescribed by the
then applicable COBRA law) (the "continuation period"), Executive shall continue
to receive such individual and/or family health benefits coverage as he was
receiving at the time of termination of employment, with Bank and Executive
paying the same portion of the cost of such coverage as existed at the time of
Executive's termination, for so long during the continuation period as Executive
elects to continue coverage and pays his portion of the costs of coverage.
(e) If Executive's employment is terminated by reason of retirement
at the end of the Term, Executive shall be entitled to receive, and Bank shall
be obligated to pay to and provide Executive, the following amounts:
(i) The base salary of Executive, at the rate in effect
immediately prior to Executive's retirement through February 28, 2007, payable
in accordance with normal payroll practices of Bank; and
(ii) During the period from Executive's retirement through March
1, 2008, Executive shall continue to receive such individual and/or family
health benefits coverage as he was receiving at the time of retirement, with
Bank and Executive paying the same portion of the cost of such coverage as
existed at the time of Executive's retirement.
8. Confidential Information and Agreement Not to Compete.
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(a) Executive understands that in the course of his employment by Bank,
Executive will receive or have access to confidential information concerning the
business or purposes of Bank, and which Bank desires to protect. Such
confidential information shall be deemed to include, but not be limited to,
Bank's customer lists, loan lists and information, and employee lists,
including, if known, personnel information and data. Executive agrees that he
will not at any time during the period ending one year after the later of (a)
the end of the Term and (b) the end of the period in which Executive is entitled
to receive any payments or benefits under this Agreement, reveal to anyone
outside Bank or use for his own benefit any such information without specific
written authorization by Bank. Executive further agrees not to use any such
confidential information or trade secrets in competing with Bank at any time
following termination of employment with Bank.
(b) Executive agrees that, if he receives any compensation from Bank under
Paragraph 7, he will not, for a period of three years following the date of his
termination, perform any services or accept any remuneration or compensation as
an officer, director, employee, agent or consultant with any depository or other
financial institution which maintains any office in the Farmington Valley of
Connecticut.
(c) In the event that Executive's termination is the result of Executive's
retirement and payments are made to Executive under Paragraph 7(e), Executive
agrees to provide such reasonable assistance to the Bank as Bank may request
during the period that Executive continues to receive payments under Paragraph
7(e)(i).
9. No Obligation to Mitigate. So long as Executive shall not be in breach
of any provision of Paragraph 8, Executive shall have no duty to mitigate
damages in the event of a termination and if he voluntarily obtains other
employment (including self-employment), any compensation or profits received or
accrued, directly or indirectly, from such other employment shall not reduce or
otherwise affect the obligations of Bank to make payments hereunder.
10. Resignation. In the event that Executive's services hereunder are
terminated under any of the provisions of this Agreement (except by death),
Executive agrees that he will deliver his written resignation as an officer of
Bank, or its subsidiaries and affiliates, to the Board of Directors, such
resignation to become effective immediately or, at the option of the Board of
Directors, on a later date as specified by the Board.
11. Insurance. Bank shall have the right at its own cost and expense to
apply for and to secure in its own name, or otherwise, life, health or accident
insurance or any or all of them covering Executive, and Executive agrees to
submit to the usual and customary medical examination and otherwise to cooperate
with Bank in connection with the procurement of any such insurance, and any
claims thereunder.
12. Release. Upon Executive's termination, as a condition of receiving
payments or benefits provided for in this Agreement, at the request of Bank,
Executive shall execute and deliver for the benefit of Bank, and any subsidiary
or affiliate of Bank, a general release in the form set forth in Attachment A,
and such release shall become effective in accordance with its terms. The
failure or refusal of Executive to sign such a release or the revocation of such
a release shall cause the termination of any and all obligations of Bank to make
payments or provide benefits hereunder, and the forfeiture of the right of
Executive to receive any such payments and benefits. Executive acknowledges that
Bank has advised him to consult with an attorney prior to signing this Agreement
and that he has had an opportunity to do so.
13. Regulatory Limitation. Notwithstanding any other provision of this
Agreement, Bank shall not be obligated to make, and Executive shall have no
right to receive, any payment, benefit or amount under this Agreement which
would violate any law, regulation or regulatory order applicable to Bank at the
time such payment, benefit or amount is due, including, without limitation,
Section 1828(k)(1) of Title 12 of the United States Code and any regulation or
order thereunder of the Federal Deposit Insurance Corporation.
14. Notices. All notices under this Agreement shall be in writing and
shall be deemed effective when delivered in person to Executive or to the
President of the Bank, or if mailed, postage prepaid, registered or certified
mail, addressed, in the case of Executive, to his last known address as carried
on the personnel records of Bank, and, in the case of Bank, to the corporate
headquarters, attention of the President of the Bank, or to such other address
as the party to be notified may specify by notice to the other party. Executive
hereby agrees to give Bank not less than sixty days' advance notice of his
intended resignation or other termination from Bank, whether or not at the end
of the Term.
15. Successors and Assigns. The rights and obligations of Bank under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of Bank, including, without limitation, any corporation, individual
or other person or entity which may acquire all or substantially all of the
stock or the assets and business of Bank, or with or into which Bank may be
consolidated or merged or any surviving corporation in any merger involving
Bank. All references in this Agreement to Bank shall be deemed to include all
such successors and assigns.
16. Arbitration. Any dispute which may arise between the parties hereto
shall be submitted to binding arbitration in Hartford, Connecticut in accordance
with the Rules of the American Arbitration Association; provided that any such
dispute shall first be submitted to Bank's Board of Directors in an effort to
resolve such dispute without resort to arbitration.
17. Severability. If any of the terms or conditions of this Agreement
shall be declared void or unenforceable by any court or administrative body of
competent jurisdiction, such term or condition shall be deemed severable from
the remainder of this Agreement, and the other terms and conditions of this
Agreement shall continue to be valid and enforceable.
18. Amendment. This Agreement may be modified or amended only by an
instrument in writing executed by the parties hereto.
19. Construction. This Agreement shall supersede and replace all prior
agreements and understandings between the parties hereto on the subject matter
covered hereby, other than the existing Change-in-Control Agreement with
Executive. This Agreement shall be governed and construed under the laws of the
State of Connecticut. Paragraph headings are for convenience only and shall not
be considered a part of the terms and provisions of the Agreement.
IN WITNESS WHEREOF, Bank has caused this Agreement to be executed by a duly
authorized officer, and Executive has hereunto set his hand, this _15th_ day of
_November__, 2005.
The Simsbury Bank & Trust Company
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
President and CEO
Executive /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
ATTACHMENT A
RELEASE
We advise you to consult an attorney before you sign this Release. You have
until the date which is seven days after the Release is signed and returned to
The Simsbury Bank & Trust Company (the "Bank") to change your mind and revoke
your Release. Your Release shall not become effective or enforceable until after
that date.
In consideration for the benefits provided under your Employment Agreement
with the Bank, and more specifically enumerated in Exhibit 1 hereto, by your
signature below you agree to accept such benefits and not to make any claims of
any kind against the Bank, its past and present and future subsidiaries,
divisions, subdivisions, affiliates and related companies or their successors
and assigns or any and all past, present and future directors, officers,
fiduciaries or employees of any of the foregoing (all parties referred to in the
foregoing are hereinafter referred to as the "Releasees") before any agency,
court or other forum, and you agree to release the Releasees from all claims,
known or unknown, arising in any way from any actions taken by the Releasees up
to the date of this Release, including, without limiting the foregoing, any
claim for wrongful discharge or breach of contract or any claims arising under
the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights
Act of 1964, the Americans with Disabilities Act of 1990, the Employee
Retirement Income Security Act of 1974, or any other federal, state or local
statute or regulation and any claim for attorneys' fees, expenses or costs of
litigation, except that this Release is not intended, and shall not be
construed, to (1) release the Bank from any vested obligations it may have under
its employee pension benefit plans or (2) release the Bank (or any insurance
carrier providing insurance coverage to the Bank or its officers and directors)
for any indemnification or other payment to which you may be entitled under the
Bank's Certificate of Incorporation or Bylaws (or under any such insurance) for
activities or actions occurring during your employment with the Bank.
THE PRECEDING PARAGRAPH MEANS THAT BY SIGNING THIS RELEASE YOU WILL HAVE
WAIVED ANY RIGHT YOU MAY HAVE TO BRING
A LAWSUIT OR MAKE ANY LEGAL CLAIM AGAINST THE RELEASEES BASED
ON ANY ACTIONS TAKEN BY THE RELEASEES UP TO THE DATE OF THIS RELEASE.
By signing this Release, you further agree as follows:
1. You have read this Release carefully and fully understand its terms;
2. You have had at least twenty-one days to consider the terms of the
Release;
3. You have seven days from the date you sign this Release to revoke it
by written notification to the Bank. After this seven day period, this Release
is final and binding and may not be revoked;
4. You have been advised to seek legal counsel and have had an
opportunity to do so;
5. You would not otherwise be entitled to the benefits provided under
your Employment Agreement with the Bank had you not agreed to waive any right
you have to bring a lawsuit or legal claim against the Releasees; and
6. Your agreement to the terms set forth above is voluntary.
Name:
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Signature: Date:
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Received by: Date:
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1.
2.
3.
4.
5.
etc.
NOTE: THIS EXHIBIT IS TO BE COMPLETED AT THE TIME OF TERMINATION TO REFLECT ALL
BENEFITS AND PAYMENTS MADE UNDER THE AGREEMENT.
Acknowledged and Agreed:
The Simsbury Bank & Trust Company Executive
By:
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Xxxxxxx X. Xxxxxx
