1
EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made as
of the 11th day of August, 1997 (the "Effective Date"), is
by and between CFX Corporation (the "Company"), a
New Hampshire corporation with principal executive offices
at 000 Xxxx Xxxxxx, Xxxxx, Xxx Xxxxxxxxx 00000, and
Xxxx X. Xxxxx, residing at 00 Xxxxxx Xxxx, Xxxxx,
Xxx Xxxxxxxxx 00000 (the "Executive").
RECITALS
WHEREAS, the Company, through its Board of Directors
(the "Board"), considers the maintenance of competent and
experienced executive officers to be essential to its
long-term success;
WHEREAS, in this regard, the Company has determined
that it is in its best interests that the Executive continue
to serve as Executive Vice President and Chief Operating
Officer of the Company, pursuant to a written employment
agreement;
NOW, THEREFORE, in furtherance of the interests
described above and in consideration of the respective
covenants and agreements herein contained, the parties
hereto agree as follows:
1. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings:
(a) "Applicable Interest" means interest at the
rate provided in Section 1274(b)(2)(B) of the Code.
(b) "Cause" means the occurrence of any of the
following:
(i) the willful and continued failure of the
Executive to substantially perform the Executive's duties
with the Company (other than any such failure resulting from
incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to
the Executive by the President which specifically identifies
the manner in which the President believes that the
Executive has not substantially performed the Executive's
duties;
- 53 -
2
(ii) the willful engaging by the Executive
in illegal conduct (excluding traffic violations, minor
misdemeanors or similar offenses) or gross misconduct that,
in the Board's reasonable opinion, may reflect adversely on
the business or reputation of the Company;
(iii) the removal and/or permanent
prohibition of the Executive from participation in the
conduct of the affairs of the Company or any of its
subsidiary banks by an order issued under Section 8(e)(4) or
8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
1818(e)(4) or 1818(g)(1);
(iv) the issuance by any court having
appropriate jurisdiction of an order under Section 21(d)(2)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), 15 U.S.C. 78u(d)(2), prohibiting the
Executive from acting as an officer or director of the
Company; or
(v) the conviction of the Executive for
commission of a felony.
(c) "Change in Control" means the occurrence of
any of the following events:
(i) there shall be consummated any
consolidation, merger, stock-for-stock exchange or similar
transaction (collectively, "Merger Transactions") involving
securities of the Company in which the holders of voting
securities of the Company immediately prior to such
consummation own, as a group, immediately after such
consummation, voting securities of the Company (or, if the
Company does not survive the Merger Transaction, voting
securities of the corporation surviving such transaction)
having less than 50% of the total voting power in an
election of directors of the Company (or such other
surviving corporation), excluding securities received by any
members of such group which represent disproportionate
percentage increases in their shareholdings vis-a-vis the
other members of such group;
(ii) any individual, corporation (other than
the Company), partnership, trust, association, pool,
syndicate, or any other entity or any group or persons
acting in concert (other than an employee benefit plan of
the Company or one of its affiliates) becomes the beneficial
owner (as that concept is defined in Rule 13d-3 promulgated
by the Securities and Exchange Commission under the Exchange
- 54 -
3
Act) as a result of any one or more securities transactions,
including gifts and stock repurchases but excluding any
Merger Transactions, of securities of the Company possessing
one-third or more of the voting power for the election of
directors of the Company;
(iii) during any period of twenty-four
consecutive months, individuals who at the beginning of such
period constituted the Board (including for this purpose any
new director whose election or nomination for election by
the Company's shareholders was approved by a vote of at
least a majority of the directors then still in office who
were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board
(excluding any Board seat that is vacant or otherwise
unoccupied); or
(iv) there shall be consummated any sale,
lease, exchange or other transfer (in one transaction or a
series of related transactions, excluding any Merger
Transactions), of all, or substantially all, of the assets
of the Company to a party which is not controlled by or
under common control with the Company.
(d) "Code" means the Internal Revenue Code of
1986, as amended.
(e) "Company Bonus Plan" means any bonus, stock
option, profit-sharing or other cash- or equity-based
incentive plan offered by the Company.
(f) "Company Benefit Plan" means any pension
(including without limitation tax-qualified), thrift,
deferred compensation, stock purchase, life insurance,
medical, dental, education, accident, disability, welfare,
retirement or other employee benefit plan offered by the
Company other than a Company Bonus Plan.
(g) "Designated Office" means 000 Xxxx Xxxxxx,
Xxxxx, Xxx Xxxxxxxxx 00000, or such other office of the
Company designated by the President from time to time other
than in anticipation of, or following a Change in Control.
(h) "President" means the President of the
Company.
(i) "Triggering Event" means the occurrence of
any of the following events:
- 55 -
4
(i) the termination by the Company of the
employment of the Executive for any reason other than Cause;
(ii) the assignment to the Executive without
his consent of any duties inconsistent in any material
respect with the Executive's position (including status,
offices, titles and reporting requirements), authority,
duties or responsibilities, or any other action by the
Company which results in a diminution in any material
respect in such position, authority, duties or
responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith
that is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(iii) in anticipation of, or following a
Change in Control, the requirement by the Company that the
Executive be based at any office or location that is more
than 75 miles from the Designated Office;
(iv) after the Effective Date, the failure
of the Company without the Executive's consent to:
(A) continue in effect any Company
Bonus Plan in which the Executive participates that is
material to the Executive's total compensation, unless a
substantially equivalent arrangement, embodied in an ongoing
substitute or alternative plan, has been made with respect
to such Company Bonus Plan;
(B) continue the Executive's
participation in any Company Bonus Plan and eligibility for
bonuses thereunder, or in any substitute or alternative
plan, on a basis at least as favorable as that existing at
the date hereof, both in terms of the amount of benefits
provided and the level of the Executive's participation
relative to other participants; or
(C) continue to provide the Executive
with benefits comparable to those received by the Executive
under any Company Benefit Plan in which the Executive was
participating, at participation costs substantially similar
to those paid by the Executive;
provided, however, that it shall not be deemed a Triggering
Event if the Board, for bona fide business purposes and not
in anticipation of or following a Change in Control,
modifies the terms or conditions of any Company Bonus Plan
or Company Benefit Plan, so long as such modifications have
or would have a substantially similar effect upon all
- 56 -
5
executive employees or all employees of the Company who
participate or who are eligible to participate in the plan.
(v) the Company issues a Non-Renewal Notice
to the Executive as provided in Section 2 of this Agreement;
(vi) the Company shall have materially
breached any provision of this Agreement and such breach
shall not have been cured within 15 days after delivery of
written notice thereof to the President by the Executive,
identifying the breach with reasonable particularity; or
(vii) a reduction by the Company in the
Executive's base annual salary as in effect on the date
hereof, as the same may be increased from time to time as
provided for in this Agreement.
(j) "Willful" means that an action, conduct or
deed is done, or omitted to be done, by the Executive in bad
faith or without reasonable belief that the Executive's
action or omission was in the best interests of the Company.
Any act, or failure to act, based upon the instructions or
prior approval of the Board or the President or based upon
the advice of counsel for the Company, shall be conclusively
presumed to be done, or omitted to be done, by the Executive
in good faith and in the best interests of the Company.
2. Employment Term. The initial term of employment
under this Agreement shall be for a period of three years
commencing on the Effective Date. This Agreement shall be
extended automatically for one additional year on each
annual anniversary date of the Effective Date unless either
the Company, through the President, or the Executive gives
contrary written notice (the "Non-Renewal Notice") to the
other not less than three months in advance of such
anniversary date. References herein to the term of this
Agreement shall refer both to such initial term and such
successive terms.
3. Employment. During the term of employment
provided for in this Agreement, the Company agrees to employ
the Executive in the office or position set forth in the
second Recital of this Agreement, and the Executive agrees
to serve in such office or position and to perform the
duties and discharge the responsibilities associated
therewith or such other duties and responsibilities as may
reasonably be assigned to the Executive from time to time by
the President. The Executive shall devote all his working
time and efforts to the business and affairs of the Company
and its subsidiaries, provided, however, that the Executive
- 57 -
6
may, with the approval of the President, serve as a director
or officer of any non-competing business or engage in any
other activity, including without limitation charitable or
community activity, to the extent that it does not inhibit
the performance of his duties hereunder.
4. Office and Services. In connection with the
Executive's employment hereunder, the Executive shall be
based at the Designated Office, except for required travel
on the Company's business. The Company shall furnish the
Executive with office space, stenographic assistance, and
such other facilities and services as shall be suitable to
the Executive's position and adequate for the performance of
his duties hereunder.
5. Compensation. The regular compensation and
benefits payable to the Executive under this Agreement shall
include the following:
(a) Salary. The Company shall pay the Executive
a base annual salary hereunder of not less than $160,000,
payable in equal semimonthly installments or at such other
intervals as shall be agreed upon by the parties. The
Executive's base annual salary may be increased from time to
time as determined by the President and, if so increased,
such base annual salary shall not thereafter during the
Executive's employment under this Agreement be decreased and
the obligation of the Company hereunder to pay the
Executive's base annual salary shall thereafter relate to
such increased base annual salary.
(b) No Separate Board Compensation. The
Executive shall not be entitled to receive any fees or
additional payments for serving as a member of the Board, as
a member of any committee of the Board, or as a member of
any board of directors (or the equivalent thereof) or any
committee thereof of any subsidiary of the Company.
(c) Discretionary Bonuses. During the term of
this Agreement, the Executive shall be eligible to
participate in an equitable manner with other executive
employees of the Company and its subsidiaries in any Company
Bonus Plan or in other discretionary bonuses authorized and
declared by the Board, and the board of directors (or the
equivalent thereof) of the Company's subsidiaries, or by
their respective delegees.
(d) Participation in Benefit Plans. In addition
to any compensation and benefits provided for in this
Agreement, the Executive shall be eligible to participate in
- 58 -
7
any Company Benefit Plan or any other employee fringe
benefits offered by the Company or its subsidiaries for the
benefit of executive employees or all employees generally in
which the Executive is eligible to participate. The
Executive's participation in any such Company Benefit Plan
shall be subject to all generally applicable eligibility
requirements thereof and shall not in any way limit or
reduce the obligation of the Company to pay the Executive's
base annual salary hereunder (except pursuant to, in
accordance with, or as required by the generally applicable
terms of participation of any such Company Benefit Plan).
(e) Vacation. The Executive shall be entitled to
a minimum annual paid vacation during the term of this
Agreement of four weeks per year or such longer period as
the President may approve.
(f) Reimbursement of Business Expenses. The
Company shall promptly reimburse the Executive for all
reasonable travel and other business expenses incurred by
him in the performance of his duties and responsibilities,
subject to such reasonable requirements with respect to
substantiation and documentation as may be specified by the
Company.
6. Termination Procedures.
(a) Termination Notice. If the Executive's
employment by the Company is terminated for any reason
during the term of this Agreement (other than by reason of
the Executive's death or as a result of a consensual
termination as provided in Section 8(c) of this Agreement),
the terminating party shall provide the other party with
written notice (the "Termination Notice") specifying:
(i) the effective date of the termination (the "Termination
Date"), (ii) the specific provisions of this Agreement upon
which the termination is based and that are applicable to
the termination, and (iii) a reasonably detailed discussion
of the facts and circumstances providing the basis for the
termination under the specified provisions of this
Agreement.
(b) Termination Date. If the Executive's
employment is terminated by the Executive, the Termination
Date shall not be less than two weeks after the date the
Termination Notice is tendered to the Company. If the
Executive's employment is terminated by the Company, the
Termination Date shall not be less than 30 days after the
date the Termination Notice is tendered to the Executive.
Termination of the Executive's employment shall occur on the
- 59 -
8
Termination Date even if there is a dispute between the
parties relating to the provisions of this Agreement
applicable to such termination (a "Termination Dispute").
(c) Termination Dispute. If, prior to the
Termination Date, the party receiving the Termination Notice
provides written notice to the other party of the existence
of a Termination Dispute (which notice shall provide a
reasonably detailed discussion of the nature of the dispute,
including the specific provisions of this Agreement that the
disputing party believes are applicable to the termination),
the Termination Dispute shall be resolved by: (i) mutual
written agreement of the parties hereto or (ii) a final
judgment, order or decree of a court of competent
jurisdiction (which is not appealable or with respect to
which the time for appeal therefrom has expired and no
appeal has been perfected). The parties hereto shall pursue
the resolution of any Termination Dispute with reasonable
diligence.
(d) Termination Payments. If there is no
Termination Dispute, any amount owed by the Company to the
Executive as a result of the termination of the Executive's
employment under this Agreement shall be payable in
immediately available funds on the Termination Date. If
there is a Termination Dispute, any amount owed by the
Company to the Executive as a result of the termination of
the Executive's employment under this Agreement that is not
in dispute shall be paid on the Termination Date, and all
other amounts shall be paid within five business days of the
resolution of the Termination Dispute as provided for in
Section 6(c) of this Agreement, together with Applicable
Interest.
7. Termination Due to a Triggering Event.
(a) If, during the term of this Agreement, the
Executive's employment by the Company is terminated (whether
by the Company or by the Executive) upon the occurrence of
or within 12 months after a Triggering Event, (i) the
Company shall make a lump sum cash payment to the Executive
in an amount equal to 299% of the Executive's base annual
salary at the time the Triggering Event occurs plus the
amount of any discretionary bonuses paid by the Company to
the Executive within the 12 months immediately preceding the
occurrence of the Triggering Event, (ii) the Company shall
continue to provide to the Executive for a three-year period
the Executive's then-existing coverage under the Company's
health, dental and life insurance plans or, if continued
coverage under such plans cannot be provided, substantially
- 60 -
9
equivalent coverage under alternative arrangements, and
(iii) any restrictions remaining on any restricted shares
issued to the Executive under the Company's restricted stock
plans shall immediately lapse, any performance shares issued
to the Executive under the Company's incentive stock plans
shall immediately vest, any stock options and stock
appreciation rights granted to the Executive shall become
immediately exercisable, and the Executive may exercise any
such option or stock appreciation right until the later of
the expiration of its original term or one year after the
effective date of the Executive's termination, provided that
this Section 7(a)(iii) shall be inoperative to the extent
that its operation would preclude the application of the
pooling of interests accounting method to a business
combination in which the Company intends to use such method
(subject to the foregoing proviso, in the event of any
conflict between the terms of this Section 7(a)(iii) and the
terms of any applicable stock or incentive plan or
implementing agreement between the Company and the
Executive, the terms of this Section 7(a)(iii) shall govern
unless prohibited by any applicable law in which case the
Company shall take all reasonable steps to ensure that the
Executive receives all the economic and financial benefits
intended to be conferred by this Section 7(a)(iii)).
(b) In the event that the Executive becomes
entitled to receive any benefit or payment in connection
with a Triggering Event or the Company's termination of the
Executive's employment, whether pursuant to the terms of
this Agreement or otherwise (collectively, the "Total
Benefits"), and any of the Total Benefits will be subject to
any excise tax (the "Excise Tax") imposed under Section 4999
of the Code, the Company shall pay to the Executive an
additional amount (the "Gross-Up Payment") such that the net
amount retained by the Executive from the Gross-Up Payment,
after deduction of any federal, state and local income
taxes, Excise Tax, and FICA and Medicare withholding taxes
on the Gross-Up Payment, shall be equal to the Excise Tax on
the Total Benefits. For purposes of determining the amount
of such Excise Tax on the Total Benefits, the amount of the
Total Benefits that shall be treated as subject to the
Excise Tax shall be equal to (i) the Total Benefits, minus
(ii) the amount of such Total Benefits that, in the opinion
of tax counsel selected by the Company and reasonably
acceptable to the Executive ("Tax Counsel"), are not excess
parachute payments (within the meaning of Section 280G(b)(1)
of the Code).
(c) For purposes of Section 7(b), the Executive
shall be deemed to pay federal income taxes at the highest
- 61 -
10
marginal rate of federal income taxation in the calendar
year in which the Excise Tax is payable and state and local
income taxes at the highest marginal rate of taxation in the
state and locality of the Executive's residence on the
effective date of his termination, net of the reduction in
federal income taxes which could be obtained from deduction
of such state and local taxes (calculated by assuming that
any reduction under Section 68 of the Code in the amount of
itemized deductions allowable to the Executive applies first
to reduce the amount of such state and local income taxes
that would otherwise be deductible by the Executive).
Except as otherwise provided herein, all determinations
required to be made under this Section 7 shall be made by
Tax Counsel, which determinations shall be conclusive and
binding on the Executive and the Company absent manifest
error.
(d) In the event that the Excise Tax on the Total
Benefits is subsequently determined to be less than the
amount taken into account hereunder at the time of
termination of the Executive's employment, the Executive
shall repay to the Company, at the time that the amount of
such reduction in Excise Tax is finally determined, the
portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment
attributable to the Excise Tax, federal, state and local
income taxes and FICA and Medicare withholding taxes imposed
on the Gross-Up Payment being repaid by the Executive to the
extent that such repayment results in a reduction in any
such taxes and/or a federal, state or local income tax
deduction) plus Applicable Interest. In the event that the
Excise Tax on the Total Benefits is finally determined to
exceed the amount taken into account hereunder at the time
of the termination of the Executive's employment (including
by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment),
the Company shall make an additional Gross-Up Payment, which
shall be calculated by Tax Counsel in the same manner and
using the same assumptions as set forth in Sections 7(b) and
7(c), to the Executive in respect of such excess (plus any
interest, penalties or additions payable by the Executive to
the Internal Revenue Service or any other federal, state,
local or foreign taxing authority with respect to such
excess or with respect to the additional Gross-Up Payment)
at the time that the amount of such excess is finally
determined.
(e) Following the occurrence of a Triggering
Event, if the Company or the Executive brings any action,
suit or proceeding for the enforcement, performance or
- 62 -
11
construction of this Agreement, the Company agrees to
reimburse the Executive for all reasonable costs and
expenses incurred by him in such action, suit or proceeding,
including reasonable attorneys' and accountants' fees and
expenses.
8. Other Termination. Notwithstanding any other
provision of this Agreement, the Executive's employment
hereunder shall terminate under the following circumstances
with the following consequences:
(a) Termination By Company for Cause. The
Company may terminate the Executive's employment under this
Agreement for Cause. The termination of the Executive's
employment under this Agreement shall not be deemed for
Cause unless and until (1) the Company, through the
President, delivers reasonable notice to the Executive that
it intends to terminate the Executive for Cause, (2) the
Executive is given an opportunity, together with counsel, to
be heard before the Board, (3) the Executive's termination
is approved by the affirmative vote of at least two-thirds
of the Board, and (4) the Company provides the Executive
with a copy of the resolutions duly adopted by the Board
finding that, in the good faith opinion of the Board, the
Executive should be terminated for Cause and specifying the
particulars thereof in detail. Upon termination for Cause,
the Executive will not be entitled to any further
compensation for any period subsequent to the effective date
of such termination, except for pay or benefits, if any, in
accordance with the then existing severance policies of the
Company and the terms of the Company Bonus Plans and Company
Benefit Plans.
(b) Termination By Company for Disability. If,
as a result of the Executive's incapacity due to physical or
mental illness, the Executive shall not have performed his
duties hereunder on a full-time basis for six consecutive
months, the Executive's employment under this Agreement may
be terminated by the Company upon written notice. Such
termination for disability shall require the affirmative
vote of a majority of the entire Board. The Executive's
compensation during any period of disability prior to the
effective date of such termination shall be the amounts
normally payable to him in accordance with his then current
base annual salary, reduced by the sum of the amounts, if
any, paid to the Executive under disability benefit plans
maintained by the Company or its subsidiaries. The
Executive shall not be entitled to any further compensation
from the Company or its subsidiaries for any period
subsequent to the effective date of such termination, except
- 63 -
12
for pay or benefits, if any, in accordance with then
existing severance policies of the Company or its
subsidiaries and the terms of the Company Bonus Plans and
Company Benefit Plans.
(c) Consensual Termination. The parties hereto
may agree at any time to terminate both this Agreement and
the Executive's employment hereunder upon such terms and
conditions as the parties may mutually agree.
(d) Termination By Reason of Death. In the event
of the death of the Executive during the term of his
employment hereunder, the Company shall pay to the
Executive's spouse, or if the Executive leaves no spouse, to
the estate of the Executive, a lump sum cash payment in an
amount equal to 100% of the Executive's base annual salary
as of the date of death, and upon payment of such amount and
any other amounts due and owing hereunder and unpaid as of
the date of death, this Agreement shall thereupon terminate
and no further amounts shall be payable hereunder; provided,
however, that nothing hereunder shall impair the Executive's
rights, if any, to pay or benefits under the Company Bonus
Plans and the Company Benefit Plans.
(e) Termination By Executive. If the Executive
terminates his employment with the Company for any reason
other than the occurrence of a Triggering Event as provided
for in Section 7 hereof or a consensual termination as
provided for in Section 8(c) hereof, the Executive will not
be entitled to any further compensation for any period
subsequent to the effective date of such termination, except
for pay or benefits, if any, in accordance with the then
existing severance policies of the Company and the Company
Bonus Plans and the Company Benefit Plans.
9. Supervisory Suspension. In the event the
Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the affairs
of the Company or any of its subsidiary banks by a notice
served under Section 8(e)(3) or 8(g)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. 1818(e)(3) or 1818(g)(1),
the Company's obligations under this Agreement shall be
suspended effective as of the service date of the notice of
suspension or temporary prohibition, unless stayed by
appropriate proceedings. If the charges in the notice are
dismissed, the Company shall (a) pay the Executive all
compensation withheld while its obligations under this
Agreement were suspended, together with Applicable Interest
and (b) reinstate all obligations under this Agreement that
were suspended.
- 64 -
13
10. Confidential Information. During the Executive's
employment with the Company and thereafter, the Executive
shall not disclose or use in any way any confidential
business or technical information or any trade secret
acquired in the course of such employment, other than
(i) information that is generally known in the Company's
industry or acquired from public sources, (ii) as required
in the course of such employment, (iii) as required by any
court, supervisory authority, administrative agency or
applicable law, or (iv) with the prior written consent of
the Company. This Section 10 shall survive termination of
this Agreement.
11. No-Raid. The Executive agrees that, in the event
the Executive's employment with the Company is terminated
for any reason whatsoever and as a result of such
termination the Executive is entitled to receive
compensation, benefits or payments hereunder or under the
Company's then existing severance policies that, in the
aggregate, equal or exceed 100% of the Executive's base
annual salary at the time of termination plus the amount of
any discretionary bonuses paid by the Company to the
Executive within the 12 months immediately preceding the
termination, the Executive shall not, for a period of one
year (or such lesser period as may be determined by the
President and disclosed to the Executive in writing) after
the effective date of the Executive's termination, solicit,
actively interfere with the Company's or any Company
affiliate's relationship with, or attempt to divert or
entice away, any officer of the Company or its affiliates.
12. Payment Obligation Absolute. The obligation of
the Company to pay the Executive the compensation, benefits
or payments provided herein during the term hereof shall be
absolute and unconditional and shall not be affected by any
circumstances, including without limitation any set-off,
counterclaim, recoupment, defense or other right which the
Company may have against the Executive. All amounts payable
by the Company hereunder shall be paid without notice or
demand. Each and every payment made hereunder by the
Company shall be final and the Company will not seek to
recover all or any part of such payment from the Executive,
or from whosoever may be entitled thereto, for any reason
whatsoever except as provided in Section 7(d) hereof. The
Executive shall not be obligated to seek other employment in
mitigation of the amounts payable under any provision of
this Agreement and the obtaining of any such other
employment shall in no event limit or reduce the obligations
- 65 -
14
of the Company to make the payments required to be made
under this Agreement.
13. No Right to Continued Employment. Nothing in this
Agreement shall be deemed to give the Executive the right to
be retained in the employ of the Company, or to interfere
with the right of the Company to discharge the Executive at
any time, subject in all cases to the terms of this
Agreement.
14. Withholding. Any payments provided for hereunder
shall be paid net of any applicable withholding required
under federal, state or local law and any additional
withholding to which the Executive has agreed.
15. Successors and Assigns. This Agreement is a
personal services contract which may not be assigned by the
Company, or assumed from the Company by, any other party
without the prior written consent of the Executive. Subject
to the foregoing limitation, all rights hereunder shall
inure to the benefit of the parties hereto, their personal
or legal representatives, heirs, successors and assigns.
The Company will require any successor (whether direct or
indirect, by purchase, assignment, merger, consolidation or
otherwise) to all or substantially all of the business
and/or assets of the Company expressly to assume this
Agreement and to agree to perform hereunder in the same
manner and to the same extent that the Company would be
required to perform if no such succession had taken place.
References herein to the Company will be understood to refer
to the successor or successors of the Company, respectively.
16. Notices. Any notice required or desired to be
given hereunder shall be in writing and shall be deemed
given when delivered personally or sent by certified or
registered mail, postage prepaid, to the address of the
other party set forth in the first paragraph of this
Agreement, provided that any notice to the Company shall be
directed to the President, unless the notice is by such
person in which case the notice shall be directed to both
the Secretary of the Company and the most senior ranking
Vice President of the Company.
17. Waiver of Breach. Waiver by any party of a breach
of any provision shall not operate as or be construed a
waiver by such party of any subsequent breach hereof.
18. Entire Agreement. This agreement contains the
entire agreement among the parties concerning the employment
of the Executive by the Company, and supersedes any
- 66 -
15
employment or change in control agreements between the
Executive and the Company or any of its predecessors,
subsidiaries or predecessors of subsidiaries.
19. Written Modification, Amendment or Waiver. No
modification, amendment or waiver of any provision hereof
shall be effective unless in writing specifically referring
hereto and signed by the party against whom such provision
as modified or amended or such waiver is sought to be
enforced.
20. Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts
have been signed by each party hereto and delivered to the
other party, it being understood that all parties need not
sign the same counterpart.
21. Governing Law. This Agreement is governed by and
is to be construed and enforced in accordance with the laws
of the State of New Hampshire applicable to contracts made
and to be performed entirely therein.
22. Consent to Jurisdiction. Each party hereto
irrevocably consents to the exclusive jurisdiction of the
courts of the State of New Hampshire and the federal courts
situated in the State of New Hampshire in connection with
any action to enforce the provisions of this Agreement, to
recover damages or other relief for breach or default under
this Agreement, to enforce any decision or award of any
arbitrators, or otherwise arising under or by reason of this
Agreement.
23. Construction.
(a) The section headings of this Agreement have
been inserted for convenience of reference only and shall
not be deemed to be a part of this Agreement.
(b) All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender,
shall include all other genders where the context so
requires.
(c) The singular shall include the plural, and
vice versa, where the context so requires.
(d) All references to sections of, or regulations
promulgated under, the Exchange Act, the Code or other
statutes shall be deemed also to refer to such sections or
- 67 -
16
regulations as amended from time to time and to any
successor provisions to such sections or regulations. All
references to employee benefit plans of the Company shall be
deemed also to refer to such plans as amended from time to
time and to any successor plans thereto.
24. Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without
affecting the validity or enforceability of any other term
or provision hereof in that or any other jurisdiction. If
any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted so as to
be enforceable.
25. Authorization. The Company represents and
warrants that the execution of this Agreement has been duly
authorized by resolution of the Board.
IN WITNESS WHEREOF, the parties have executed or caused
to be executed this Agreement as of the date first above
written.
CFX CORPORATION
By:
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
-------------------------------
Xxxx X. Xxxxx
- 68 -
