EXHIBIT 10.5
CHANGE IN CONTROL, CONFIDENTIALITY
AND NONCOMPETITION AGREEMENT
This Agreement is effective as of the 7th day of November, 2003 by and
between BAR HARBOR BANKING AND TRUST COMPANY, a Maine corporation with its
principal office at 00 Xxxx Xxxxxx, X.X. Xxx 000, Xxx Xxxxxx, XX 00000-0000 (the
"Employer"), and XXXX X. READ of Bar Harbor ME (the "Executive").
W I T N E S S E T H:
WHEREAS, Bar Harbor Banking and Trust Company is a wholly-owned
subsidiary of Bar Harbor Bankshares; and
WHEREAS, the Executive is an employee of the Employer; and
WHEREAS, the Employer desires to enhance the ability of the Employer to
retain the services of the Executive and to reward the Executive for his
valuable, dedicated service to the Employer in the event of his termination of
employment in connection with a change in control.
NOW, THEREFORE, the parties hereto do hereby agree as follows:
1. Definitions
1.1. Bank shall mean Bar Harbor Banking and Trust Company.
1.2. Base Compensation shall mean the annual base salary payable by
the Employer to the Executive, excluding any bonuses, incentive compensation and
other forms of additional compensation.
1.3. Cause shall be deemed to exist only in the event the Executive
is convicted by a court of competent jurisdiction of a felony involving
dishonesty or fraud on the part of the Executive in his relationship with the
Employer, the Holding Company or the Bank.
1.4. Change in Control shall mean the occurrence of any one of the
following events:
(a) Any person, including a group (as such term is used
in Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) becomes the beneficial owner (as determined
pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of Bar Harbor Bankshares representing more than fifty
percent (50%) of the combined voting power of Bar Harbor Bankshares'
then outstanding securities, other than as a result of an issuance of
securities initiated by Bar Harbor Bankshares in the ordinary course of
its business; or
(b) Bar Harbor Bankshares is party to a Business
Combination (as hereinafter defined) unless, following consummation of
the Business Combination, more than fifty percent (50%) of the
outstanding voting securities of the resulting entity are beneficially
owned, directly or indirectly, by the holders of Bar Harbor Bankshares'
outstanding voting securities immediately prior to the Business
Combination in substantially the same proportions as those existing
immediately prior to the Business Combination; or
(c) The stockholders of Bar Harbor Bankshares approve a
plan of complete liquidation of Bar Harbor Bankshares or an agreement
for the sale or disposition by Bar Harbor Bankshares of all or
substantially all of Bar Harbor Bankshares' assets to another person or
entity that is not a wholly owned subsidiary of Bar Harbor Bankshares.
For purposes of this Section 1.4, a Business Combination means any cash
tender or exchange offer, merger or other business combination, sale of stock,
or sale of all or substantially all of the assets, or any combination of the
foregoing transactions.
For purposes of this Section 1.4, a Change in Control shall exclude any
internal corporate change, reorganization or other such event, which occurred
prior to or may occur following the date of this Agreement.
1.5. Code shall mean the Internal Revenue Code of 1986, as amended,
and as it may be amended from time to time, together with the rules and
regulations promulgated under such code.
1.6. Date of Termination shall mean:
(a) If the Executive's employment is terminated for
Disability, thirty (30) days after Notice of Termination for Disability
is given by the Employer to the Executive and the Executive shall not
have returned to the performance of his duties on a full-time basis
during such thirty (30) day period;
(b) If the Executive's employment is terminated by the
Employer for Cause or by the Executive for Good Reason, the date
specified in the Notice of Termination, but not earlier than the date
on which such Notice of Termination is given; and
(c) If the Executive's employment is terminated or
terminates for any other reason, the date on which the Executive ceases
to perform services for the Employer as a common law employee.
1.7 Disability shall mean a permanent and total disability (as
defined in the Employer's long term disability plan) which is incurred by the
Executive while he is employed by the Employer and which makes the Executive
eligible to receive a disability income under the Employer's long term
disability insurance plan. Such disability shall be deemed to exist only if an
application for benefits is filed with the administrator of the Employer's long
term disability
2
insurance plan by or on behalf of the Executive and is approved by the
administrator, each in the manner described in such long term disability
insurance plan.
1.8 Employer shall mean the Bank.
1.9. Good Reason shall mean, unless the Executive consents to such
action, a reduction in the Executive's compensation that does not apply
generally to all senior executive officers of the Employer, the Holding Company
and the Bank, a material reduction in the duties of the Executive, or a change
in the principal worksite of the Executive to a location that is more than fifty
(50) miles from Bar Harbor, Maine. Notwithstanding the above, Good Reason shall
not include any reorganization of the board of directors of the Holding Company
or the Bank, or any change in the Executive's position with the Holding Company
or the Bank, that occurred prior to the date of this Agreement.
1.10. Holding Company shall mean Bar Harbor Bankshares, its
subsidiaries and affiliates.
1.11. Notice of Termination shall mean the notice provided pursuant
to Section 3.
2. Severance Benefits.
In the event that: (a) the Employer terminates the Executive's
employment other than as a result of Disability and other than for Cause, or the
Executive terminates his employment for Good Reason; and (b) the Executive's
termination of employment occurs in anticipation of or after a Change in
Control, then the Employer shall pay the Executive the severance benefits
described in this Section 2. The Executive's termination of employment shall be
deemed to be in anticipation of a Change in Control if it occurs within the
twelve (12) month period prior to the occurrence of the Change in Control.
The severance benefits described in this Section 2 shall equal the
following:
(a) The Executive shall receive a lump sum severance
payment within five (5) days after the Date of Termination. Such
payment shall equal 1.5 times the Executive's Base Compensation,
determined as of the Date of Termination.
(b) The Executive and his dependents shall continue to be
eligible to receive the same medical, health, dental and life insurance
benefits which the Executive is eligible to receive on the Date of
Termination. The Executive shall be required to make the same premium
contributions that he was required to make immediately prior to the
Date of Termination. The ability of the Executive and his dependents to
receive such benefits shall continue for a period of eighteen (18)
months following the Date of Termination.
3
(c) In the event of a Change of Control, all stock
options granted but unexercised under the Bar Harbor Bankshares and
Subsidiaries Incentive Stock Option Plan of 2000 or any other
subsequent equity plan shall become 100% vested immediately prior to
any such Change of Control. These grants will remain subject to all
other terms and conditions in the Bar Harbor Bankshares and
Subsidiaries Incentive Stock Option Plan of 2000 or any subsequent
equity plan.
The Executive shall not be required to mitigate the amount of any
severance benefits described in this Section 2 by seeking other employment.
3. Notice of Termination.
Any termination of the Executive's employment by the Employer due to
Disability or for Cause, or by the Executive due to Good Reason, shall be
communicated by written Notice of Termination to the other party.
Notwithstanding the above, however, the Executive shall not be entitled to give
a Notice of Termination that the Executive is terminating employment for Good
Reason more than six (6) months following the occurrence of the event alleged to
constitute Good Reason.
A Notice of Termination must indicate the specific provisions in this
Agreement which are relied upon as the basis for the termination of the
Executive's employment, and must also set forth in reasonable detail the facts
and circumstances claimed to provide the basis for such termination under the
provisions so indicated.
4. Loss of Severance Benefits.
If the Employer shall terminate the Executive's employment due to
Disability or for Cause, or if the Executive shall terminate his employment
other than for Good Reason, or if the Executive shall die, then the Executive
shall have no right to receive any severance benefits under this Agreement.
5. No Other Benefits Payable.
(a) If the Executive is entitled to receive the severance
benefits described in Section 2 of this Agreement, he shall not be
entitled to receive: (i) any severance benefits under the terms of any
general severance pay policy or plan of the Employer, the Holding
Company or the Bank; or (ii) any other compensation, benefits or
payments under the terms of any other plan of, or agreement with, the
Employer, the Holding Company or the Bank.
(b) Notwithstanding the above, the Executive shall be
entitled to receive any compensation, benefits or payments which are
specifically authorized by the terms of any plan of, or agreement with,
the Employer, the Holding Company or the Bank to be paid in addition to
the severance benefits described in Section 2 of this Agreement.
Moreover,
4
notwithstanding the above, the Executive shall be entitled to receive,
in addition to the severance benefits described in Section 2 of this
Agreement, any compensation, benefits or payments which the Executive
is entitled to receive under: (i) the Bar Harbor Bankshares
Supplemental Executive Retirement Plan; (ii) any incentive compensation
plan maintained by the Employer, the Holding Company or the Bank which
provides for payment to a terminated employee of incentive compensation
earned by the employee prior to his or her termination of employment;
or (iii) any payroll plan or policy of the Employer, the Holding
Company or the Bank which provides for payment to a terminated employee
of any unpaid vacation, holiday or sick pay accrued by the employee
prior to his or her termination of employment.
6. Certain Additional Payments by the Employer.
(a) Anything in this Agreement to the contrary
notwithstanding and except as set forth below, in the event it shall be
determined that any payment or distribution made at any time by the
Employer or to or for the benefit of the Executive (whether paid or
payable, or distributed or distributable, pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional
payments required under this Section 6) (a "Payment") would be subject
to the excise tax imposed by Section 4999 of the Code, or any interest
or penalties are incurred by the Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment"). The Gross-Up Payment shall equal such an amount
that, after payment by the Executive of all taxes (including, without
limitation, any federal, state or local income taxes, Social Security
taxes and Medicare taxes, and any interest or penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments. Notwithstanding the foregoing provisions
of this Section 6(a), if it shall be determined that the Executive is
entitled to a Gross-Up Payment, but that the Payments do not exceed
110% of the greatest amount (the "Reduced Amount") that could be paid
to the Executive such that the receipt of Payments would not give rise
to any Excise Tax, then no Gross-Up Payment shall be made to the
Executive and the Payments, in the aggregate, shall be reduced to the
Reduced Amount.
(b) Subject to the provisions of Section 6(d), all
determinations required to be made under this Section 6 (including,
without limitation, whether and when a Gross-Up Payment is required,
the amount of such Gross-Up Payment, and the assumptions to be utilized
in arriving at such determination) shall be made by KPMG Peat Marwick
or such other certified public accounting firm as may be designated by
the Executive (the "Accounting Firm"). The Accounting Firm shall
provide detailed supporting calculations both to the Employer and to
the Executive within fifteen (15) business days after the receipt of
notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Employer. In the event that the
Accounting Firm is serving as
5
accountant or auditor for the individual, entity or group effecting the
Change of Control, the Executive shall appoint another nationally
recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting
Firm shall be borne solely by the Employer. Any Gross-Up Payment, as
determined pursuant to this Section 6, shall be paid by the Employer to
the Executive within five (5) days after its receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm shall be
binding upon the Employer and the Executive.
(c) As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by
the Accounting Firm hereunder, it is possible that Gross-Up Payments
which will not have been made by the Employer should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Employer exhausts its remedies
pursuant to Section 6(d) and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine
the amount of the Underpayment that has occurred, and any such
Underpayment shall be promptly paid by the Employer to or for the
benefit of the Executive.
(d) The Executive shall notify the Employer in writing of
any claim by the Internal Revenue Service or any other taxing authority
that, if successful, would require the payment by the Employer of a
Gross-Up Payment. Such notification shall be given as soon as
practicable, but no later than ten (10) business days after the
Executive is informed in writing of such claim. The notification shall
apprise the Employer of the nature of such claim and the date on which
such claim is requested to be paid. The Executive shall not pay such
claim prior to the expiration of the thirty (30) day period following
the date on which it gives such notice to the Employer (or such shorter
period ending on the date that any payment of taxes with respect to
such claim is due). If the Employer notifies the Executive in writing
prior to the expiration of such period that it desires to contest such
claim, the Executive shall:
(i) give the Employer any information reasonably
requested by the Employer relating to such claim;
(ii) take such action in connection with
contesting such claim as the Employer shall reasonably request
in writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by
an attorney reasonably selected by the Employer;
(iii) cooperate with the Employer in good faith in
order effectively to contest such claim; and
(iv) permit the Employer to participate in any
proceedings relating to such claim;
6
provided, however, that the Employer shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest, and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any Excise Tax or
other taxes (including interest and penalties with respect thereto)
imposed as a result of such representation and the payment of any costs
and expenses. Without limitation on the foregoing provisions of this
Section 6(d), the Employer shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or
forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim, and
may, at its sole option, either direct the Executive to pay the tax
claimed and xxx for a refund or contest the claim in any permissible
manner. The Executive agrees to prosecute any such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction, and in one or more appellate courts, as the Employer
shall determine; provided, however, that if the Employer directs the
Executive to pay such claim and xxx for a refund, the Employer shall
advance the amount of such payment to the Executive on an interest-free
basis, and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or other taxes (including interest
or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and
further provided, that any extension of the statute of limitations
relating to the payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Employer's
control of the contest shall be limited to issues with respect to which
a Gross-Up Payment would be payable hereunder, and the Executive shall
be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.
(e) If, after the receipt by the Executive of an amount
advanced by the Employer pursuant to Section 6(d), the Executive
becomes entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Employer's complying with the
requirements of Section 6(d)) promptly pay to the Employer the amount
of such refund (together with any interest paid or credited thereon,
after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Employer pursuant to Section 6(d), a
determination is made that the Executive shall not be entitled to any
refund with respect to such claim and the Employer does not notify the
Executive in writing of its intent to contest such denial of refund
prior to the expiration of thirty (30) days after such determination,
then such advance shall be forgiven and shall not be required to be
repaid, and the amount of such advance shall offset, to the extent
thereof, the amount of the Gross-Up Payment required to be paid.
7. Successors.
(a) The Employer will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business
7
and/or assets of the Employer to expressly assume and agree to perform
its obligations under this Agreement in the same manner and to the same
extent that the Employer would be required to perform them if no such
succession had taken place. Each such successor shall execute a written
agreement evidencing its assumption of the Employer's obligations under
this Agreement prior to the effective date of any such purchase,
merger, consolidation or other transaction.
(b) The failure of the Employer to obtain from each
successor the written agreement described in Section 7(a) shall be a
breach of the obligations of the Employer under this Agreement, and
shall entitle the Executive to compensation from the Employer in the
same amount and on the same terms as he would be entitled hereunder if
the Employer had terminated the Executive's employment after a Change
in Control other than for Disability or Cause; except that, for
purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed to be the Date of
Termination.
(c) As used in this Section 7, the Employer shall include
the Employer, the Holding Company, the Bank, and any successor to all
or substantially all of the business and/or assets of any of them
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) which executes and delivers the written agreement described
in Section 7(a) or which otherwise becomes bound by all the terms and
provisions of this Agreement.
8. Confidential Information, Non Competition Obligations, and
Non-Solicitation.
(a) Confidential Information
The Executive recognizes and acknowledges that certain assets
of the Holding Company, the Bank, or any of their affiliates or
subsidiaries constitutes Confidential Information.
For purposes hereof, the term "Confidential Information" means
any and all information and compilations of information, in whatever
form or medium (including any copies thereof), relating to any part of
the business of the Holding Company, the Bank or any of their
subsidiaries or affiliates, or the business of their customers,
provided to the Executive, or which the Executive obtained or compiled
or had obtained or compiled on his behalf, which information or
compilations of information are not a matter of public record or
generally known to the public, including without limitation:
(i) Financial information regarding the Holding
Company, the Bank, or any of their subsidiaries or affiliates;
8
(ii) Personnel data, including compensation
arrangements relating to the Executive or any other employees
of the Holding Company, the Bank, or any of their subsidiaries
or affiliates;
(iii) Internal plans, practices, and procedures of
the Holding Company, the Bank or any of their subsidiaries or
affiliates;
(iv) The names, portfolio information, investment
strategies, requirements, lending or deposit information, or
any similar information of any customers, clients, or
prospects of the Holding Company, the Bank, or any of their
subsidiaries or affiliates;
(v) Business methods and marketing strategies of
the Holding Company, the Bank, or any of their subsidiaries or
affiliates;
(vi) Any other information expressly deemed
confidential by the officers and directors of the Holding
Company, the Bank, or any of their subsidiaries or affiliates;
and
(viii) The terms and conditions of the Agreement
and any documents or instruments executed in connection
herewith that are not of public record.
The Executive shall not, without the prior written consent of
the Holding Company, the Bank, or any of their subsidiaries or
affiliates, use or disclose, or negligently permit any unauthorized
person to use, disclose, or gain access to, any Confidential
Information.
Upon termination of employment, the Executive hereby agrees to
deliver promptly to the Holding Company, the Bank, or any of their
affiliates or subsidiaries all memoranda, notes, records, manuals, or
other documents, including all copies of such materials, containing
Confidential Information, whether made or compiled by the Executive or
furnished to him from any source by virtue of the Executive's
relationship with the Holding Company, the Bank, or any of their
subsidiaries or affiliates.
Regardless of the reason for his cessation of employment, the
Executive will furnish such information as may be in the Executive's
possession and cooperate with the Holding Company, the Bank, or any of
their affiliates or subsidiaries as may reasonably be requested in
connection with any claims or legal actions in which the Holding
Company, the Bank, or any of their subsidiaries or affiliates are or
may become a party. The Employer will reimburse the Executive for any
reasonable out-of-pocket expenses the Executive incurs in order to
satisfy his obligations under this clause.
9
(b) Non-Competition Obligations
In consideration of the covenants of the Employer contained
herein, the Executive covenants and agrees with the Employer that,
during the " Non-Compete Period" (as hereinafter defined) and within a
one hundred fifty (150) "air" mile radius from Bar Harbor, Maine, the
Executive shall not without specific written approval, directly or
indirectly:
(i) Engage in any insurance, brokerage, trust,
banking, or other financial services as an owner, employee,
consultant, representative, or in any other capacity;
(ii) Directly or indirectly request or advise any
past, present, or future customers of the Holding Company, the
Bank or any of their subsidiaries or affiliates to withdraw,
curtail, or cancel his or her or its business with the Holding
Company, the Bank, or any of their subsidiaries or affiliates;
(iii) Directly or indirectly cause, suggest, or
induce others to call on any past, present, or future
customers of the Holding Company, the Bank or any of their
affiliated entities; or
(iv) Canvas, solicit, or accept any business on
behalf of any other bank, insurance agency, trust, or other
financial services business, other than the Holding Company,
the Bank or any of their affiliated entities, from any past or
present customer of the Holding Company, the Bank or any of
their affiliated entities.
The "Non-Compete Period" shall commence on the date hereof and
terminate one (1) year after the cessation of the Executive's
employment with the Employer and all of its affiliates, regardless of
reason, whether or not pursuant to this Agreement.
(c) Non-Solicitation of Employees
While employed by the Employer, and for one (1) year following
cessation of his employment with the Employer and all of its affiliates
for any reason, the Executive shall not, directly or indirectly, by any
means or device whatsoever, for himself or on behalf of, or in
conjunction with, any other person, partnership or corporation,
solicit, entice, hire, or attempt to hire or employ any employee of the
Holding Company, the Bank or any of their affiliated entities.
During this Agreement, the Executive shall not interview or
negotiate employment with, or accept employment from, a competitor in
the market area described in Section 8(b) above except with the written
consent of the Employer.
10
9. Reformation; Injunctive Relief.
(a) All the parties hereto acknowledge that the parties
have carefully considered the nature and scope of this Agreement. The
activities, period and area covered by Section 8 are expressly
acknowledged and agreed to be fair, reasonable and necessary. To the
extent that any covenant contained in Section 8 is held to be invalid,
illegal or unenforceable because of the extent of activities, duration
of such covenant, the geographic area covered thereby, or otherwise,
the parties agree that the court making such determination shall reform
such covenant to include as much of its nature and scope as will render
it enforceable and, in its reduced form, said covenant shall be valid,
legal and enforceable to the fullest extent of the law.
(b) The Executive acknowledges and agrees that, upon any
breach by the Executive of his obligations under Section 8 hereof, the
Employer will have no adequate remedy at law, and accordingly will be
entitled to specific performance and other appropriate injunctive and
equitable relief, notwithstanding Section 10 hereof. Nothing herein
shall be construed as prohibiting the Employer from pursuing any other
remedies available to it, including the recovery of damages from the
Executive.
10. Mediation and Arbitration.
If the Executive and the Employer have any dispute whatsoever relating
to the interpretation, validity or performance of this Agreement, or any other
dispute arising out of this Agreement, every reasonable attempt will be made to
resolve any differences or dispute within thirty (30) days of an issuance of
written notice by either party to the other party.
If a successful resolution of any differences or dispute has not been
achieved to the satisfaction of both parties at the end of the 30-day period,
the following steps will be used:
Except as otherwise expressly provided hereunder, the parties
agree that any and all differences or disputes arising out of the
Executive's employment or cessation of employment, including but not
limited to any dispute, controversy, or claim arising under any
federal, state, or local statute, law, ordinance or regulation or under
this Agreement, shall be resolved exclusively by Alternative Dispute
Resolution described in this Agreement ("ADR"). The initiation of ADR
shall first require mediation, and the parties agree to first try to
settle any dispute through mediation. Mediation shall be initiated by
either party by the serving of a written notice of intent to mediate (a
"Mediation Notice") by one party upon the other. If no resolution has
been mutually agreed through mediation within ninety (90) days of
service of a Mediation Notice, then and only then may the dispute be
submitted to arbitration. Arbitration shall be initiated by the serving
of a written notice of intent to arbitrate (an "Arbitration Notice") by
one party upon the other. Notwithstanding the foregoing, nothing in
this Agreement shall be deemed to preclude
11
the Employer from seeking temporary or permanent injunctive relief
and/or damages from a court of competent jurisdiction with respect to
any breach of Section 8 of this Agreement.
In the event that a party wishes to initiate ADR, a Mediation
Notice must be served on the other party within six (6) months from the
date on which the claim arose. If the parties cannot mutually agree on
a mediator, then a mediator shall be selected in accordance with the
Employment Mediation Rules of the American Arbitration Association.
In the event that mediation is unsuccessful and arbitration is
initiated, it shall be conducted under the National Rules of the
Resolution of Employment Disputes of the American Arbitration
Association. There shall be a single arbitrator to be agreed upon by
the parties, provided that, if the parties are unable to agree upon a
single arbitrator, each party shall name an arbitrator and the two so
named shall name a third arbitrator The arbitration proceedings shall
be heard by the arbitrator(s) and the decision of the arbitrator, or
the majority of the panel if one has been selected, shall be final and
binding on the parties. Judgment upon the arbitration award may be
entered in any court of competent jurisdiction. An Arbitration Notice
must be served on the other party within one (1) year from the date on
which the claim arose, and the failure to bring such a claim within
such one-year period shall constitute a waiver of such claim and an
absolute bar to any further proceedings in any forum with respect to
it. All mediation and arbitration proceedings shall be conducted in
Bangor, Maine, unless the parties otherwise agree in writing.
The cost of any mediation proceeding under this Section 10 will be paid
by the Employer. The cost of any arbitration proceeding will be shared equally
by the parties to the dispute; provided, however, that, if the dispute is
resolved in favor of the Executive, such cost shall be paid in full by the
Employer.
11. Post-Termination Obligations.
All payments and benefits due to the Executive under this Agreement
shall be subject to the Executive's compliance with this Section 11 for one full
year following the Executive's Date of Termination. The Executive shall, upon
reasonable notice, furnish such information and assistance to the Employer, the
Holding Company and the Bank as may reasonably be required by the Employer, the
Holding Company or the Bank in connection with any litigation in which it or any
of its subsidiaries or affiliates is, or may become, a party.
12. General Provisions.
(a) All notices required by this Agreement shall be in
writing and shall be sufficiently given if delivered personally or
mailed by registered mail or certified mail,
12
return receipt requested, to the parties at their then current
addresses. All notices shall be deemed to have been given as of the
date so delivered or mailed.
(b) This Agreement and the plans and agreements described
in Section 5(b) contain the entire transaction between the parties, and
there are no other representations, warranties, conditions or
agreements relating to the subject matter thereof.
(c) The waiver by any party of any breach or default of
any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach.
(d) This Agreement may not be changed orally but only by
an agreement in writing executed on behalf of the party against which
enforcement of any waiver, change, modification, consent or discharge
is sought.
(e) This Agreement shall be binding upon and inure to the
benefit of the Employer and the Executive and their respective
successors, assigns, heirs and legal representatives (including, but
not limited to, any successor of the Employer described in Section 7).
(f) Each of the parties agrees to execute all further
instruments and documents and to take all further action as the other
party may reasonably request in order to effectuate the terms and
purposes of this Agreement.
(g) This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the
same instrument.
(h) This Agreement shall be construed pursuant to and in
accordance with the laws of the State of Maine. Actions brought by the
Employer under this Agreement shall be subject to the exclusive
jurisdiction of the state and federal courts of Maine. Both parties
consent to the personal jurisdiction of such courts for such actions,
and agree that they may be served with process in accordance with
Section 12(a).
(i) The Executive acknowledges that he has had a full and
complete opportunity to review the terms, enforceability and
implications of this Agreement, and that the Employer has not made any
representations or warranties to the Executive concerning the terms,
enforceability and implications of this Agreement other than as are
reflected in this Agreement.
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the _____ day of ______________, 20____.
Witness: EMPLOYER:
BAR HARBOR BANKING AND TRUST COMPANY
_________________________ By____________________________
Title:
Witness: EXECUTIVE:
_________________________ ______________________________
Xxxx X. Read
Bar Harbor Bankshares hereby guarantees and agrees to perform the
obligations of Bar Harbor Banking and Trust Company under the terms of this
Agreement. The liability of Bar Harbor Bankshares under this guarantee is
primary, direct and independent. This guarantee shall be enforceable against Bar
Harbor Bankshares in the same manner as if Bar Harbor Bankshares were the
Employer under the terms of this Agreement.
Witness: GUARANTOR:
BAR HARBOR BANKSHARES
_________________________ By____________________________
Title:
14
