EXHIBIT 10(a)(5)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement, dated as of November 3,
2003 (this "Agreement"), is between PATRIOT NATIONAL BANK, a national
banking association with headquarters located in Stamford, Connecticut
(the "Bank"), PATRIOT NATIONAL BANCORP, INC., a Connecticut corporation
("Bancorp") and Xxxxxx X. X'Xxxxxxx of Xxxxxxx, Massachusetts (the
"Executive").
RECITALS
WHEREAS, the Executive and the Bank entered into an Employment Agreement
dated as of September 19, 2001 (the "Original Employment Agreement") and
the Executive and the Bank desire to modify certain provisions of the
Original Employment Agreement and to amend and restate such agreement in
its entirety as set forth herein;
WHEREAS, the Executive and the Bank desire that the Executive be
employed by the Bank as Chief Financial Officer and Senior Executive
Vice President. The Executive and the Bank desire to enter into this
Employment Agreement with Executive for several primary reasons: (1) to
provide Executive with job security, particularly in the event that the
Bank experiences a change-of-control; (2) to provide further incentive
to Executive in the discharge of his responsibilities to the Bank; and
(3) to define Executive's duties and terms of employment;
WHEREAS, the Bank and Executive contemplate that the Bank will: (i)
disclose to Executive information concerning the Bank's business
affairs, including certain confidential information; and (ii) assist
Executive in establishing goodwill and rapport with certain customers of
the Bank. The use by Executive of this information, goodwill and rapport
in competing with or in aiding others in competing with the Bank would
have a detrimental effect on future profitable operations of the Bank.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter described, the parties hereby amend and restate the Original
Employment Agreement in its entirety and agree as follows:
1. Term of Employment. The Bank agrees to employ Executive, and
Executive agrees to accept employment with the Bank for a term
commencing as of the date hereof and continuing until December 31, 2007,
unless sooner terminated as provided in this Agreement (the "Employment
Period"). The Bank further agrees to participate in discussions with
Executive promptly following the second anniversary of the date hereof
for the purpose of determining whether a further extension to this
Agreement is acceptable to the parties hereto, it being understood that
neither party shall have any binding obligation to further extend the
Employment Period, provided however that in all events, the Executive
shall be required to and hereby agrees to provide the Bank with not less
than six months prior written notice in the event the Executive
determines not to seek an extension of the Employment Period or
otherwise determines to terminate his employment with the Bank.
2. Duties.
(a) During the Employment Period, Executive shall perform the duties and
exercise the powers relating to the office of Chief Financial Officer
and Senior Executive Vice President, including all duties assigned to
Executive by the Chief Executive Officer of the Bank. All duties
assigned shall be consistent with the customary duties of the
above-described offices at a national bank.
(b) During the Employment Period, Executive shall devote his entire
business time, best efforts and ability to the business of the Bank,
shall faithfully and diligently perform his duties, shall comply in all
material respects with the overall policies established by the Board of
Directors of the Bank and shall do all that is reasonably in his power
to promote, develop and extend the business of the Bank. Notwithstanding
the foregoing, it is understood that the Executive shall be permitted to
continue to serve on various civic and non-profit organizations approved
by the Bank.
3. Compensation and Benefits.
(a) Base Salary. The Bank shall pay Executive as compensation for his
services during the Employment Period an annual base salary of One
Hundred Sixty Five Thousand ($165,000.00) Dollars for the period ending
on October 31, 2004 (the "Base Salary"). Salary payments shall be made
in equal installments consistent with the Bank's standard payroll
practices for its officers. The Base Salary shall be reviewed by the
Board of Directors each year during the Employment Period and set by the
Board of Directors in an amount not less than the stated contract
salary; any increase in Base Salary in excess of the stated contract may
take the form of a contingent increase based upon the achievement of
articulated personal or corporate goals, or both, at the discretion of
the Board of Directors. If, for any calendar year commencing on or after
2004, Executive's total compensation is not increased from the prior
calendar year by at least the average of the increase in total
compensation in such year for all officers of the Bank at the vice
president level and above, then Executive shall have the right, by
notice in writing to the Bank within thirty (30) days after such
compensation increases are determined, to terminate this Agreement as of
the date which is six months after the date of such notice, provided
that in such event, Executive shall be bound by the provisions of
Section 6 herein but only for a period of ninety (90) days instead of
one year.
(b) Expenses. Upon submission of appropriate invoices or vouchers, the
Bank shall pay or reimburse Executive for all reasonable expenses
incurred by him in the performance of his duties under this Agreement in
furthering the business, and in keeping with the policies, of the Bank.
(c) Vacation. Executive shall be entitled to four (4) weeks paid
vacation each contract year, to be taken each year at a time or times as
shall be mutually agreed upon by the Bank and Executive and consistent
with applicable regulatory requirements. If Executive fails to use all
of his vacation time during a particular calendar year, the unused
portion shall not be carried over to the subsequent year, unless
approved in writing by the Chief Executive Officer or the Chairman of
the Board of the Directors.
(d) Cash Incentive Compensation. The Board of Directors, in its sole
discretion, may authorize the payment of special cash incentive
compensation to Executive from time to time in excess of the amount
stated in any documented regular cash incentive plans. Any such special
payment of incentive compensation will not set a precedent requiring or
suggesting that similar incentive compensation will be paid in the
future. The Bank's Board of Directors will consider the adoption of
documented regular cash incentive compensation plans whereby the
Executive would receive specific cash compensation for the achievement
of articulated goals as determined by the Board of Directors. Any such
regular cash incentive compensation shall be separate and apart from any
special cash incentive compensation.
(e) Insurance Policies.
(i) Term Life Insurance. During the Employment Period, Bank shall
provide term life insurance coverage for Executive in such form and
amount as is not less favorable than that coverage provided by the Bank
to other Bank employees from time to time generally.
(ii) Disability Insurance. During the Employment period, Bank shall
provide Executive with disability insurance coverage in such form and
amount consistent with that provided to other Bank employees generally.
(f) Benefits. During the Employment Period, Executive shall be entitled
to and shall be included under the same rules or restrictions in any
employee welfare and retirement plan or program of the Bank available
generally to its employees and/or officers including, without
limitation, plans for hospital services, medical services benefits, sick
pay, dental and other health plans.
(g) Stock Plans. During the Employment Period, Executive may be included
in any stock incentive, stock option, or stock compensation plan as the
Board of Directors of the Bank may determine. Such plans may be
documented by the Board of Directors and the Executive from time to
time.
4. Disability. If during any period in which Executive shall have
continued to perform his duties as an employee of the Bank, Executive
shall incur a total or partial disability (as defined in subsection (d)
below), then until the earlier of (a) 180 days after the date such
disability is incurred, or (b) the expiration of the term of the
Employment Period (either shall be termed the "Disability Period"), the
Bank shall pay Executive during the Disability Period on the basis of
his then-regular salary (any payments that Executive does or would
otherwise receive pursuant to the Bank's; disability coverage for
employees generally for this period of disability shall be set off
against these payments).
(a) If Executive's total disability shall terminate prior to the
expiration of the Employment Period, then Executive shall return to full
and active employment with the Bank under the terms of this Agreement;
provided that if he shall again become disabled within a period of three
(3) months after such return, other than by reason of an event which is
not causatively related to his original disability, then Executive shall
be deemed to have been continuously disabled from the date he incurred
his original disability;
(b) In the event Executive shall incur a partial disability (as defined
in (d) below), then during the period of the partial disability, the
compensation to be paid to him in consideration of his services to the
Bank shall be equitably adjusted to reflect the time that he is able to
devote to the affairs of and the value of the service he is able to
impart to the Bank; provided, however, that during the Disability
Period, the compensation shall not be less than Executive would have
received under this Section 4 had he been totally rather that partially
disabled (this is to say, he shall receive his then-regular salary for
that Disability Period);
(c) Payments to Executive under this Section 4 shall be reduced by the
amounts, if any, as may be payable to him by reason of his disability
under policies of insurance maintained and/or paid for by the Bank;
(d) As used in this Agreement, the term "total disability" shall mean a
disability such that, for physical or mental reasons, Executive is
unable to perform substantially his obligations hereunder for the
reasonably foreseeable future (not less than 90 days), as determined by
the Bank's Board of Directors after considering competent medical
evidence. As used in this Agreement, the term "partial disability" shall
mean a disability, other than a total disability, such that, for
physical or mental reasons, Executive is unable to perform a material
portion of his usual duties at the Bank on a full-time basis as
determined by the Bank's Board of Directors after considering competent
evidence.
5. Termination.
(a) Termination by Death. If Executive dies during the Employment
Period, the Bank's obligations under this Agreement shall terminate
immediately and Executive's estate shall be entitled to all arrearages
of salary and expenses but shall not be entitled to further
compensation.
(b) Termination With or Without Cause. This Agreement and Executive's
employment with the Bank may be terminated for cause at any time upon
notice from the Bank to Executive, which notice shall set forth the
facts on which the termination is based. Upon termination, Executive
shall be entitled to all arrearages of salary and expenses, but shall
not be entitled to further compensation or benefits.
As used in this Agreement, and without limitation, "cause" shall
include: (i) Executive's conviction by any trial court of any crime
involving fraud, embezzlement, theft or dishonesty; (ii) serious willful
misconduct by Executive, including personal dishonesty in connection
with Bank business or customers or the breach of a fiduciary duty to the
Bank or its customers; (iii) the total disability of Executive, as
defined in Section 4 above; (iv) any material breach by Executive of
this Agreement; or (v) if the Bank's regulatory authorities issue an
order removing Executive from his positions at the Bank, or if such
regulatory authorities inform the Directors that continuation of
Executive in his position at the Bank would constitute an unsafe and
unsound banking practice.
Executive's employment may be terminated by the Bank without cause at
any time, provided that, in such event, Bank shall pay Executive, in one
lump-sum payment within thirty (30) days after such termination, an
amount equal to the aggregate amount of salary payments that would be
made to Executive for the remainder of the Employment Period, calculated
at the Executive's then annual Base Salary.
In addition, if Executive is terminated without cause, the Bank shall
either continue to carry Executive at no additional cost to him under
the Bank's employee hospital, medical services, dental and other health
plans for the remainder of the Employment Period, or, if he is not
eligible for continued coverage under such plans, pay the cost of
similar coverage for Executive pursuant to COBRA or similar private
insurance plans offering comparable coverage.
In addition to the foregoing, in the event that Executive's employment
is terminated by the Bank without cause following the occurrence of a
"Change of Control" as defined in that certain Amended and Restated
Senior Management Change of Control Agreement dated as of November 3,
2003 between the Executive and the Bank (the "Change of Control
Agreement"), the Executive shall be entitled to receive the higher of
(i) the payment amount calculated pursuant to the third paragraph of
this Section 5(b), or (ii) the amount payable pursuant to the Change of
Control Agreement, but the Executive shall not be entitled to receive
both of the aforesaid payment amounts.
(c) Immediate Cessation of Employment. In the event Executive's
employment terminates pursuant to subparagraph (b), the Bank may further
direct Executive to cease immediately his activities on behalf of the
Bank and to discontinue using any of the Bank's facilities.
(d) Survival. Anything in this Agreement to the contrary notwithstanding
the provisions of Sections 6, 7, 8, 9, and 10 shall survive the
termination of Executive's employment with the bank.
6. Non-Competition Agreement.
(a) Executive absolutely and unconditionally covenants and agrees with
the Bank that, from the period commencing on the date of this Agreement
and continuing for a period of one (1) year following the termination of
his employment as provided for in this Agreement, Executive will not,
anywhere in the Restricted Area (as defined in subparagraph (b) below),
either directly or indirectly, solely or jointly with any person or
persons (a "Competitor"), as an employee, consultant, or advisor
(whether or not engaged in business for profit), or an individual
proprietor, partner, shareholder (provided that share ownership of less
than 5% of the share voting power shall be permitted), director,
officer, joint venturer, investor (provided that such investment will
not be a violation if it is limited to less than 5% of the ownership of
such entity), lender, or in any other capacity, compete with the
business of the Bank (i) as conducted as of the date of execution of
this Agreement; or (ii) as conducted during the Employment Period; or
(iii) as conducted as of the end of the Employment Period or (iv) as
proposed to be conducted by the Bank as of the end of the Employment
Period (collectively, the "Business"). Notwithstanding the foregoing,
the provisions of this Section 6 (a) shall not apply in the event that
(i) the Executive's employment is terminated by the Bank other than for
cause during the last six months of the Employment Period or (ii) the
Executive is employed by the Bank for the entire three (3) year term
hereof and the Bank then determines not to further renew or extend this
Agreement on substantially similar terms. In either of the foregoing
events, however, the terms of Sections 7 and 8 hereof shall continue to
be binding upon the Executive.
(b) As used in this Section 6: (i) the term "compete" shall mean
engaging, participating, or being involved in any respect in the
business of banking, or furnishing any aid, assistance or service of any
kind to any person in connection with, the Business and shall include,
without limitation, being employed by any banking institution which has
a branch or other place of business in the Restricted Area; (ii) the
term "Restricted Area" shall mean Greenwich, Stamford, Darien, New
Canaan, Norwalk, Westport and any other town or city in which the Bank
has an office or a branch as of the time of the termination of
employment.
(c) If a Court or arbitration panel concludes through appropriate
proceedings that Executive has breached the covenant set forth in this
Section, the term of the covenant shall be extended to a term equal to
the period for which Executive is determined to have breached the
covenant.
7. Covenant Not to Disclose. Executive agrees that, by virtue of the
performance of the normal duties of his position with the Bank and by
virtue of the relationship of trust and confidence between Executive and
the Bank, he possesses and will possess certain data and knowledge of
operations of the Bank which are proprietary in nature and confidential.
Executive covenants and agrees that he will not, at any time, whether
during the term of this Agreement or otherwise, reveal, divulge or make
known to any person (other than the Bank) or use for his own account,
any confidential or proprietary record, data, trade secret, price
policy, rate structure, personnel policy, method or practice of
obtaining or doing business by the Bank, or any other confidential or
proprietary information whatever (the "Confidential Information"),
whether or not obtained with the knowledge and permission of the Bank
and whether or not developed, devised or otherwise created in whole or
in part by his efforts. Executive further covenants and agrees that he
shall retain all such knowledge and information which he shall acquire
or develop respecting such Confidential Information in trust for the
sole benefit of the Bank and its successors and assigns.
8. Non-Interference Covenant. Executive covenants and agrees that he
will not, for a period of one (1) year following the termination of this
Agreement, directly or indirectly, for whatever reason, whether for his
own account or for the account of any other person, firm, corporation or
other organization: (i) solicit, employ, or otherwise interfere with any
of the Bank's contracts or relationships with any employee, officer,
director or any independent contractor who is employed by or associated
with the Bank at the time of termination of this Agreement; or (ii)
actively solicit, or cause to be solicited or otherwise actively
interfere with any of the Bank's contracts or relationships with any
independent contractor, customer, client or supplier of the Bank. It
shall not constitute a violation of this Section 8 if customers, clients
or employees follow Executive to his new place of employment without any
independent solicitation on the part of Executive (or caused by
Executive) or if such customers or clients respond to any mass
advertising solicitation conducted independently by Executive's new
employer without input from Executive.
9. Business Materials and Property Disclosure. All written materials,
records, and documents made by Executive or coming into his possession
concerning the business or affairs of the Bank shall be the sole
property of the Bank and, upon termination of his employment with the
Bank, Executive shall deliver the same to the Bank and shall retain no
copies. Executive shall also return to the Bank all other property in
his possession owned by the Bank upon termination of his employment.
10. Breach by Executive. It is expressly understood, acknowledged and
agreed by Executive that: (i) the restrictions contained in Sections 6,
7, 8, and 9 of this Agreement represent a reasonable and necessary
protection of the legitimate interests of the Bank and that his failure
to observe and comply with his covenants and agreements in those
Sections will cause irreparable harm to the Bank; (ii) it is and will
continue to be difficult to ascertain the nature, scope and extent of
the harm; and (iii) a remedy at law for such failure by Executive will
be inadequate. Accordingly, it is the intention of the parties that, in
addition to any other rights and remedies which the Bank may have in the
event of any breach of said Sections, the Bank shall be entitled, and is
expressly and irrevocably authorized by Executive, to demand and obtain
specific performance, including without limitation, temporary and
permanent injunctive relief, and all other appropriate equitable relief
against Executive in order to enforce against Executive, or in order to
prevent any breach or any threatened breach by Executive, of the
covenants and agreements contained in those Sections.
11. Regulatory Restrictions. Notwithstanding any provision to the
contrary in this Agreement, the Bank shall not be required under this
Agreement to continue Executive in his position(s) at the Bank, or to
make any payments to Executive, if the regulatory authorities having
jurisdiction over the Bank order the Executive's removal from the Bank,
or if such regulations determine that any payment xxxx constitute an
illegal "excess parachute" payment under 12 U.S.C. Section 1828(k) and
regulations promulgated thereunder, or an "unsafe or unsound banking
practice" pursuant to 12 U.S.C. Section 1818(b).
12. Arbitration. Any dispute whatsoever relating to the interpretation,
validity or performance of this Agreement, or any other dispute arising
out of this Agreement which cannot be resolved by any party upon thirty
(30) days' written notice to the other party shall be settled by
arbitration in the City of Stamford, Connecticut, in accordance with the
rules then prevailing of the American Arbitration Association, and the
judgment upon the award rendered by the arbitrators may be entered in
any court of competent jurisdiction. It is the purpose of this
Agreement, and the intent of the parties hereto to make the submission
to arbitration of any dispute or controversy arising out of this
Agreement, as set forth hereinabove, an express condition precedent to
any legal or equitable action or proceeding of any nature whatsoever.
13. General Provisions:
(a) All notices required by this Agreement shall be in writing and shall
be sufficiently given if delivered or mailed by registered or certified
mail, return receipt requested, to the parties at their respective
addresses set forth below. Any party may specify a different address by
written notice to the other, in accordance with this Section. All
notices shall be deemed to have been given as of the date so delivered
or mailed.
To the Bank:
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX
Attention: Chairman of the Board of Directors
To Executive:
Xxxxxx X. X'Xxxxxxx
(b) Except insofar as Executive may be subject to general policies
adopted by the Bank from time to time, this Agreement contains the
entire agreement between the parties, and there are no other
representations, warranties, conditions or agreements relating to the
subject matter of this Agreement.
(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 duly 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
Bank and Executive and their respective successors, assigns, heirs and
legal representatives. Insofar as Executive is concerned, this Agreement
is personal and Executive's duties under it shall not be assigned by
Executive.
(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 Connecticut.
(i) Wherever used in this Agreement, the masculine, feminine and neuter
pronouns shall be fully interchangeable, and the singular shall include
the plural where the context so requires and vice versa.
(j) If any term or provision of this Agreement is held or deemed to be
invalid or unenforceable, in whole or in part, by a court of competent
jurisdiction, such term of provision shall be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
PATRIOT NATIONAL BANK
By: _______________________________
Chairman of Board of Directors
PATRIOT NATIONAL BANCORP, INC.
By: _______________________________
Xxxxxx X. X'Xxxxxxx
Executive
