AGREEMENT
THIS AGREEMENT, made this 5th day of January, 1996, by and between
Tolland Bank, a state-chartered savings bank ("Bank"), and Xxxxxx X. Xxxxx, an
individual ("Employee").
In consideration of the mutual agreements herein contained, the parties
hereto, intending to be legally bound, agree as follows:
1. Need for Agreement
(a) Because of the prospects of sweeping changes in the
industry (e.g., interstate banking, mergers, the continuing transition from
traditional savings bank powers to full commercial bank powers, etc.), and
(b) because of the need for the Employee to perform his job
without undue fear of (a) above, this Agreement sets forth the following:
2. Term of Agreement and Renewal Term
(a) This Agreement shall commence on January 1, 1996, and
shall continue in effect through December 31, 1997. The term of the agreement
shall automatically be extended for an additional period of one year ("Renewal
Term") upon each successive anniversary of January 1 if neither party hereto,
within not more than 60 days prior to the date two (2) years before the
expiration date of this agreement including any extensions hereof, has provided
the other with a written notice to terminate this agreement. Any such renewal
shall be upon the terms and conditions set forth herein unless the parties have
agreed in writing to different terms and conditions. It is provided, further,
that notwithstanding any such notice by the Bank not to extend, this Agreement
shall continue in effect for a period of 24 months beyond the term provided
herein if a "change in control of the Bank" or a "potential change in control of
the Bank", as defined in Section 3, below, shall have occurred during such term.
3. Change in Control
(a) No benefits shall be payable hereunder unless there shall
have been a change in control of the Bank, as set forth below, and the
Employee's employment by the Bank shall thereafter have been terminated in
accordance with Section 4. For purposes of this Agreement, a "change in control
of the Bank" shall mean a change in control of a nature that would be required
to be reported in response to Item 5(f) of Schedule 14A of Regulation 14a
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"); provided that, without limitation, such a change in control shall be
deemed to have occurred if:
(1) any "person" (as such 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 Bank representing 25% or more of the combined voting power
of the Bank's then outstanding securities;
(2) during any period of twelve consecutive months,
individuals who at the beginning of such period constitute the Board cease for
any reason to constitute a majority thereof unless the election, or the
nomination for election by the Bank's shareowners, of each new director was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period.
(b) For purposes of this Agreement, a "potential change in
control of the Bank" shall be deemed to have occurred if:
(1) the Bank enters into an agreement, the
consummation of which would result in the occurrence of a change in control of
the Bank; or
(2) any person (including the Bank) publicly
announces an intention to take or to consider taking actions which if
consummated would constitute a change in control of the Bank; or
(3) any person becomes the beneficial owner,
directly or indirectly, of securities of the Bank representing 10% or more of
the combined voting power of the Bank's then outstanding securities; or
(4) the Board of Directors adopts a resolution to the
effect that a potential change in control of the Bank for purposes of this
Agreement has occurred.
4. Termination Following Change in Control
If any of the events described in Section 3 hereof
constituting a change in control of the Bank shall have occurred, the Employee
shall be entitled to benefits provided in Section 5, below, upon the subsequent
termination of his employment during the term of this Agreement:
(a) If the Employee becomes, in the business judgment of the
Board of Directors, physically, mentally, or otherwise disabled such that he is
unable to perform his duties under this Agreement for a period of six (6)
consecutive months; provided, however, such determination by the Board of
Directors shall be based on the unanimous opinion of a physician selected each
by the Employee and the Bank. If such physicians are not in agreement, the
Employee and the Bank shall select a third physician whose decision shall be
used by the Board of Directors for their determination.
(b) Without cause, provided, however, that:
(1) sixty (60) days prior written notice is delivered to
Employee, and
(2) notice of such termination has been delivered after,
simultaneously with, or is in any way connected with a "potential change in
control of the Bank" or a "change in control in the Bank" as defined in
Subsections (a) and (b) of Section 3, above.
(c) With cause: cause shall include personal dishonesty;
willful misconduct;
breach of fiduciary duty involving personal profit; intentional failure to
perform stated duties (other than such failure resulting form the Employee's
incapacity due to physical or mental illness or any such actual or anticipated
failure resulting from the Employee's termination for "Good Reason" as defined
in Subsection (d) of this Section 4, below); willful violation of any law, rule,
regulation (other than traffic violations or similar offenses), or final cease
and desist order or the Federal Deposit Insurance Corporation, or material
breach of any provisions of this contract. For purposes of this Subsection, no
act, or failure to act, on the Employee's part shall be considered "willful"
unless done, or omitted to be done, by the Employee not in good faith and
without reasonable belief that the Employee's action or omission was in the best
interest of the Bank. Notwithstanding the foregoing, the Employee shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to the Employee a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the entire membership of the Board at a
meeting of the Board called and held for that purpose (after reasonable notice
to the Employee and an opportunity for the Employee, together with his counsel,
to be heard before the Board), finding that in the good faith opinion of the
Board the Employee was guilty of conduct set forth above in this Subsection (c)
of this Section 4 and specifying the particulars thereof in detail:
(d) With Good Reason
The Employee shall be entitled to terminate his
employment for Good Reason. "Good Reason" shall mean:
(1) the assignment to the Employee of any duties
inconsistent with the Employee's status as a senior executive officer of the
Bank or any significant or inconsistent alteration in the nature or status of
the Employee's responsibilities from those in effect immediately prior to a
change in control of the Bank; or
(2) a reduction by the Bank in the Employee's annual
salary as in effect on the date hereof or as the same may be increased from
time to time; or a reduction in fringe benefits, unless such reduction is made
equitably or is applicable to other Bank employees on a non-discriminatory
basis; or
(3) the relocation of the Bank's principal executive
offices to a location outside the greater Hartford area or the Bank's requiring
the Employee to be based anywhere other than the Bank's principal executive
offices.
The Employee's right to terminate his employment pursuant to this
Subsection shall not be affected by his incapacity due to physical or mental
illness.
5. Compensation Upon Termination or During Disability
(a) During any period that the Employee fails to perform his
duties under this Agreement as a result of incapacity due to physical or mental
illness, the Employee shall continue to receive his full salary at the rate then
in effect, including all compensation, for a period not to exceed 12 months or
until the Employee is eligible for Long Term Disability benefits, whichever
occurs first. Thereafter, the Employee's benefits shall be determined in
accordance with the Bank's insurance programs, pension plan, profit sharing and
retirement plan then in effect.
(b) If the Employee's employment shall be terminated for
"Cause" pursuant to Subsection (c) of Section 4 above, the Bank shall pay the
Employee his full salary through the Date of Termination at the rate in effect
at the time Notice of Termination is given and the Bank shall have no further
obligations to the Employee under this Agreement.
(c) If the Employee's employment shall be terminated "Without
Cause" pursuant to Subsection (b) of Section 4 above, or with "Good Reason"
pursuant to Subsection (d) of Section 4 above, the Employee shall be entitled to
the benefits provided below:
(1) The Bank shall pay the Employee his full
salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given and any incentives earned prior to the Date of
Termination but as yet not paid, and
(2) the Bank shall pay $25,000 to the Employee at
the time of termination. Such sum shall be paid, at the Employee's election
either in a lump sum or on a salary continuation basis, and
(3) the Bank shall continue to pay to the Employee
his full salary at his rate of compensation until such payments, including the
payment made pursuant to paragraph 5 (c) (2) above, have reached 2.9 times the
sum of the Employee's average annual salary and bonuses for the preceding five
years and
(4) the Bank shall arrange to provide the Employee
with life, disability, accident and health insurance benefits equal to those
which the Employee was receiving immediately prior to the Notice of
Termination for two years, and
(5) the Employee shall not be required to mitigate
the amount of any payment provided for in this Section 5 by any compensation
earned by the Employee as the result of part-time or temporary employment
by another employer, and
(6) in addition to all other amounts payable to the
Employee under this Section 5, the Employee shall be entitled to receive all
benefits payable to the Employee under the Bank's vacation policy, pension plan,
profit sharing plan and any other plan or agreement relating to retirement
benefits.
6. Notice of Termination
(a) Any purported termination by the Bank or by the Employee
communicated by written Notice of Termination to the other party hereto in
accordance with Subsection (b) of this Section 6 shall mean a 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 the Employee's employment under the provision
so indicated.
(b) A notice, request, demand or other communication required
or permitted to be given under this Agreement shall be sufficient if in writing
and if delivered personally, or sent by certified or registered mail to the
address below or to other such addressee or address as shall be set forth in a
notice given in the same manner:
If to the Employee: Xxxxxx X. Xxxxx
00 Xxxxxxxx Xx.
Xxxxxx, XX 00000
If to the Bank (mail): Tolland Bank
Olde Tolland Common
P. O. Xxx 000
Xxxxxxx, XX 00000
If to the Bank (deliver): Tolland Bank
000 Xxxxxxxx Xxxx.
Xxxxxx, XX 00000
7. Date of Termination
"Date of Termination" shall mean:
(a) if the Employee's employment is terminated for Disability,
thirty (30) days after Notice of Termination is given, provided that the
Employee shall not have returned to the performance of his duties on a full-time
basis during such thirty (30) day period, and
(b) if the Employee's employment is terminated "Without Cause"
pursuant to Subsection (b) of Section 4 or for "Good Reason" pursuant to
Subsection (d) of Section 4, above, sixty (60) days from the date shown Notice
of Termination is given, and
(c) if the Employee's employment is terminated for "Cause"
pursuant to Subsection (c) of Section 4, above, the date of the Notice of
Termination.
Notwithstanding Subsections (a), (b), and (c) of this Section 7, the
party receiving such Notice of Termination shall have thirty (30) days to notify
the other party that a dispute exists concerning the termination, and the Date
of Termination shall be the date 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 Bank
will continue to pay the Employee his full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to, base
salary) and continue the Employee as a participant in all compensation, benefit
and insurance plans in which the Employee was participating when the notice
giving rise to the dispute was given, until the dispute is finally resolved in
accordance with this subsection except if such Employee is terminated for
"Cause". Amounts paid under this Subsection 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.
8. Successors; Binding Agreement
(a) The Bank will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Bank to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Bank would be required to perform it if no such succession had taken
place. Failure of the Bank to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Employee to terms as the Employee would be entitled under this
Agreement if the Employee terminated his employment for Good Reason, except that
for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used in
this Agreement, "Bank" shall mean the Bank as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Employee should die while any amount would still be payable to the Employee
under this Agreement if the Employee had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this agreement to the Employee's devisee, legatee or other designee or if there
is no designee, to the Employee's estate.
9. Validity
If for any reason any provision hereof shall be determined to
be invalid or unenforceable, the validity and effect to the other provisions
hereof shall not be affected thereby.
10. Waiver of Breach
The waiver by the Bank or by the Employee of a breach of any
provision of the Agreement by the other party shall not operate, or be
construed, as a waiver of any other breach of such other party.
11. Entire Agreement and Modification
This Agreement constitutes the entire agreement between the
parties and supersedes all other agreements, arrangements, representations, and
communications, oral or written, so that except for the provisions of this
agreement the employment relationship between the parties is an at-will
relationship which may be terminated at any time by either party. This Agreement
shall not be modified or amended except by written agreement of the parties
hereto.
12. Arbitration and Attorney Fees
Claims, disputes or other matters in question between the
parties to this Agreement arising out of or relating to this Agreement or breach
thereof, shall be subject to and decided by arbitration in accordance with the
appropriate rules of the American Arbitration Association currently in effect,
unless the parties mutually agree otherwise. The Employee seeking to enforce the
terms of this Agreement who prevails is entitled to reasonable attorney fees.
13. Applicable Law
The parties hereto agree that this Agreement shall be
construed and enforced pursuant to the laws of the State of Connecticut except
to the extent that such law may be preempted by applicable Federal Law,
including regulation, or orders duly issued by the FDIC ("Federal Law"), in
which event this Agreement shall be governed and be interpreted by Federal Law.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
day and year first above written.
EMPLOYEE: FOR THE BANK:
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxxx
President & CEO Its Chairman of the Board
/s/ Evi X. Xxxxxxx
----------------------
Witness
/s/ Xxxxxxx X. Xxxxxx CORPORATE SEAL:
----------------------
Witness
