EMPLOYMENT AGREEMENT
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This Employment Agreement, dated as of September 19, 2001 (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 desire that the Executive be employed
by the Bank as Chief Financial Officer and 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 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 on September 19,
2001 and continuing for a period of three years, 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.
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
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.
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(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
Twenty Five Thousand ($125,000.00) Dollars for the period ending on October 31,
2001, and thereafter such annual base salary shall be increased to One Hundred
Forty Thousand ($140,000.00) Dollars (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 2002, 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, 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
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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
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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
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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 Senior Management Change of Control
Agreement dated as of May 1, 2001 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
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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
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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
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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.
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(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 /s/ XXXXXX XX XXXX
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Chairman of Board of Directors
PATRIOT NATIONAL BANCORP, INC.
By: /s/ XXXXXX XX XXXX
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/s/ XXXXXX X. X'XXXXXXX
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Xxxxxx X. X'Xxxxxxx
Executive
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