EXHIBIT 10(a)(10)
EMPLOYMENT AGREEMENT
This Employment Agreement, dated October 23, 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
Xxxxxxx X. Xxxxxx of Danbury, Connecticut (the "Executive").
RECITALS
WHEREAS, the Executive, the Bank and Bancorp desire that the Executive
be employed as President and Chief Executive Officer of the Bank and as
President of Bancorp. 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 October 23, 2003 and continuing through December 31, 2006,
unless subsequently extended or sooner terminated as provided in this
Agreement (the "Employment Period"). The Bank further agrees to initiate
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 the President and Chief
Executive Officer of the Bank and the President of Bancorp, including
all duties assigned to Executive by the respective Boards of Directors
of the Bank and Bancorp (the "Boards of Directors"). Unless otherwise
specifically indicated, the term "Board of Directors" as used herein
shall mean the Board of Directors of the Bank. All duties assigned shall
be consistent with the customary duties of the above-described offices
at a national bank. The Executive will be a director of Bancorp and the
Bank, and Vice Chairman of the Board of Directors of Bancorp. In the
event Executive is not so elected as a director of Bancorp and the Bank
and as a Vice Chairman of Bancorp during any relevant period, Executive
shall have the right to terminate this Agreement without any further
duties or obligations on the part of Executive hereunder.
(b) During the Employment Period, Executive shall devote his entire
business time, best efforts and ability to the business of the Bank and
Bancorp, 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 Bancorp and shall do all that is
reasonably in his power to promote, develop and extend the business of
the Bank and Bancorp. 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 and Bancorp.
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 Two
Hundred Twenty-five Thousand Dollars ($225,000.00) for the first twelve
(12) month period, Two Hundred Forty Thousand Dollars ($240,000.00) for
the second twelve (12) month period, Two Hundred Sixty Thousand Dollars
($260,000.00) for the third twelve (12) month period, and at an
annualized rate of Two Hundred Sixty Thousand Dollars ($260,000.00) for
the remaining period ending December 31, 2006 (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.
(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 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 Executive shall be entitled to participate in any Profit
Sharing Plan or any additional compensation plan adopted by the Board of
Directors and generally available to the officers and/or employees of
the Bank. In the event that the Executive's profit share payout
percentage is reduced to a level below any other member of senior
management of the Bank, the Executive shall have the right to terminate
this Agreement without any further duties or obligations on the part of
Executive hereunder, and in such event Executive shall not be entitled
to any termination payment under Section 5 hereof.
(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) Key Man Insurance. During the Employment Period, Executive
shall permit the Bank to insure his life under a policy or policies of
life insurance issued by an insurance company or companies selected by
the Bank, and to name the Bank as sole beneficiary thereunder. Executive
agrees to submit to any physical examinations which may be reasonably
required in connection with such policies.
(iii) 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, as to any stock
incentive, stock option, or stock compensation plan adopted by the Board
of Directors, the Executive will be entitled to participate therein to
the extent determined by the Board of Directors in its reasonable
discretion. In addition, notwithstanding the expiration of the
Executive's Employment Agreement dated October 23, 2000 (as amended)
(the "2000 Employment Agreement"), the Executive shall continue to be
entitled to all of the stock grant and stock option benefits set forth
in Section 3(g) thereof, and the vesting of such stock grants and stock
options and the effect thereon of any termination of the Executive's
employment shall continue to be governed by the 2000 Employment
Agreement.
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
thirty (30) days advance written 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 Paragraph 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 higher of the following: (i) that amount which is
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; or (ii) that amount which is equal
to 1-1/2 years (18 months) Base Salary, calculated at Executive's then
annual Base Salary, whichever is greater.
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.
The provisions of this Section 5 shall apply only to termination of this
Agreement prior to a Change of Control (as hereinafter defined).
Termination of this Agreement following the occurrence of Change of
Control shall be governed by Section 11 hereof.
(c) The Executive shall have the right to terminate this Agreement
without any further duties or obligations on his part in the event that
any person other than Xxxxxx Xx Xxxx holds the position of Chairman of
the Board of the Bank or Bancorp or Chief Executive Officer of Bancorp,
or in the event that Xxxxxx Xx Xxxx and his family members or trusts
reduce their beneficial ownership of Bancorp's common stock to an amount
less than twenty-five percent (25%) of the total outstanding common
stock of Bancorp. In the event of such a termination, Executive shall
not be entitled to any termination payment.
(d) Immediate Cessation of Employment. In the event Executive's
employment terminates pursuant to subparagraphs (b) or (c) above, 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; provided, however, that in the event of these directions,
the Bank shall continue to provide Executive with salary and other
benefits required by this Agreement until the expiration of the notice
period set forth in subparagraph (b).
(e) Survival. Anything in this Agreement to the contrary
notwithstanding, the provisions of Sections 6, 7, 8 and 9, shall survive
the termination of Executive's employment with the bank.
6. Non-Competition Agreement and Non-Interference Covenants.
(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"). In addition, 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. 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 or (ii) the Executive is employed by the Bank for
the entire term hereof and the Bank and the Executive fail to agree, at
least 6 months prior to the end of such term, as to the terms and
conditions for a new contract or renewal hereof, provided, however, that
the provisions of this Section 6(a) shall continue to apply even in the
event of the circumstances described in subsections (i) and (ii)
immediately above in the event that the Bank determines, in its sole
discretion, to pay to the Executive an amount equal to seventy-five
percent (75%) of the Executive's total cash compensation in respect of
the immediately preceding twelve month period (excluding stock related
payments), such payment to be made to the Executive within ninety (90)
days of the end of this Agreement, in which event the Executive shall
then be subject to the restrictions of the aforesaid Section 6(a). In
either of the foregoing events, however, the terms of Section 7 hereof
shall continue to be binding upon the Executive. In addition, and
notwithstanding the foregoing, the non-compete, non-solicitation and
non-interference provisions of this Section 6(a) shall apply to the
Executive in the event the Executive receives the Change of Control
Amount pursuant to Section 10 herein, and in such situation only, the
"Restricted Area" shall be (i) the towns identified in Section 6(b)
below, (ii) any town or city in which the Bank has an office or branch
as of the time of the Change of Control, and (iii) Westchester, Nassua
and Suffolk Counties, New York. Upon any violation of the aforesaid
provisions by the Executive, the Executive shall repay the Change of
Control Amount to the Bank.
(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) except
as otherwise provided in Section 6(a) above, the term "Restricted Area"
shall mean the following towns: Greenwich, Stamford, Darien, New Canaan,
Norwalk, Wilton and Westport and Westchester, Nassua and Suffolk
Counties, New York.
(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. 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.
9. Breach by Executive. It is expressly understood, acknowledged and
agreed by Executive that: (i) the restrictions contained in Sections 6,
7 and 8 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.
10. Change of Control. If there is a "Change of Control" of the Bank (as
defined below) (i) during any time Executive is a full-time executive of
the Bank, or (ii) within six (6) months following Executive's
termination of employment other than (A) for cause, or (B) by reason of
the Executive's death or disability, the Executive shall be entitled to
receive a change of control payment (the "Change of Control Amount") in
consideration of services previously rendered to the Bank. The Change of
Control Amount shall be made as a lump sum cash payment equal to two (2)
times the greater of the following: (A) the Executive's then annual Base
Salary; (B) the Executive's cash compensation (the "Cash Compensation")
from the Bank for services rendered for the last full calendar year
immediately preceding the Change of Control; or (C) the Executive's
average annual Cash Compensation with respect to the two (2) most recent
taxable years ending before the date on which the Change of Control
occurs.
The Cash Compensation referred to above shall include the amount of Base
Salary and any cash incentive compensation paid to Executive for
services rendered for the time period in question, as such compensation
is described in Sections 3(a) and 3(d) hereof, including any and all of
said amounts as may have been deferred by Executive under deferral
plans, if any, of the Bank, and shall include long-term compensation
which, by its terms, is accelerated upon a Change of Control, or if not,
shall by this Agreement be so accelerated and determined as the present
value of any long-term cash incentive compensation previously awarded to
Executive but not yet paid, measured at the time of award with the
assumption that the award would be 100% earned over the performance
period. For purposes of computing the Change of Control Amount, Cash
Compensation will not include any cash received in lieu of stock options
or restricted stock, provided however, that the Executive shall be
entitled to receive such cash in lieu of amounts to the extent otherwise
payable under Section 3(g)(i) of the 2000 Employment Agreement. Payment
of the Change of Control Amount under this Section 10 shall be in lieu
of any amount due or payable to the Executive under Sections 3 and 5
hereof. Payment under this Section 10 shall be paid in full within 15
days following the date of the Change of Control, provided, however,
that such payment may be deferred for such period (not to exceed 90
days) following the date of the Change of Control as the Bank requests
the Executive to continue to provide services to the Bank, if requested
by the Bank. If the Executive voluntarily terminates employment with the
Bank prior to the date (not more than 90 days following the date of the
Change of Control) specified by the Bank, the Executive shall forfeit
the Change of Control Payment. The Change of Control Payment shall not
be reduced by any compensation which the Executive may receive from
other employment with another employer should Executive's employment
with the Bank terminate.
For purposes hereof, a "Change in Control" shall have occurred if:
(1) any "person" other than (i) Xxxxxx XxXxxx and his family
members or family trusts, or (ii) any trustee or other fiduciary
holding securities under an employee benefit plan of the Bank within
the meaning of Section 14(d) of the Securities Exchange Act of 1934
(the "Act"), by merger or otherwise, becomes the "beneficial owner"
as defined in Rule 13d-3 thereunder, directly or indirectly, of more
than 25% of the Bancorp's Common Stock;
(2) any "person" other than (i) Xxxxxx XxXxxx and his family
members or family trusts; or (ii) any trustee or other fiduciary holding
securities under an employee benefit plan of the Bank, acquires by proxy
or otherwise the right to vote more than 25% of Bancorp's Common Stock
for the election of directors, other than solicitation of proxies by the
Incumbent Board (as hereinafter defined), for any merger or
consolidation of the Bank or for any other matter or question;
(3) Bancorp's stockholders have approved the sale of all or
substantially all of the assets of the Bank; or
(4) the Board of Directors determines that a person other than
Xxxxxx XxXxxx and his family members or family trusts directly or
indirectly exercises a controlling influence over the management or
policies of the Bank,
A "Change of Control" shall be deemed not to have occurred if (A) such
event is mandated or directed by a regulatory body having jurisdiction
over the Bank's operations; or (B) it occurs pursuant to the terms of a
plan for the acquisition of the capital stock of Bancorp by a newly
formed bank holding company if in the consummation of such plan the
shareholders of Bancorp will receive, pro rata, all of the common stock
of such bank holding company; unless, in such transaction, a Person
satisfies sub-paragraph (1), (2), or (4) above.
A "Person" shall include a natural person, corporation, or other entity.
When two or more persons act as a partnership, limited partnership,
syndicate, or other group for the purpose of acquiring, holding or
disposing of Bancorp capital stock, such partnership, syndicate or group
shall be considered a Person. Beneficial ownership shall be determined
under the then current provisions of Rule 13d-3 of the Securities
Exchange Act of 1934, as amended, Reg. Section 240.13d-3, or their
successor provision(s). The filing of a Form F-11A by a Person shall not
be deemed a Change of Control.
If, after a Change of Control of the Bank, the Executive incurs any fees
and expenses of counsel to enforce this Agreement, the Bank agrees to
pay such fees and expenses to Executive. The Executive's choice of
counsel and his decision to retain counsel shall be in his reasonable
discretion, provided any such fees and expenses must be reasonable and
shall be payable only if the Executive prevails on the merits of his
claim.
Notwithstanding any other provision hereof, in the event that any
payment or benefit received or to be received by the Executive in
connection with a Change in Control of the Bank or the termination of
the Employment Period (whether pursuant to the terms of this Agreement
or any other plan, arrangement or agreement with the Bank, any person
whose actions result in a Change in Control or any person affiliated
with the Bank or such person (collectively with the Change of Control
Amount, "Total Payments")) would not be deductible (in whole or part) as
a result of Section 280G of the Code, by the Bank, an affiliate or other
person making such payment or providing such benefit, the Change of
Control Amount shall be reduced until no portion of the Total Payments
is not deductible, or the Change of Control Amount is reduced to zero.
For purposes of this limitation (a) no portion of the Total Payments the
receipt or enjoyment of which the Executive shall have effectively
waived in writing prior to the date of payment of the Change of Control
Amount shall be taken into account; (b) no portion of the Total Payments
shall be taken into account which in the opinion of tax counsel selected
by the Bank's independent auditors and acceptable to the Executive does
not constitute a "parachute payment" within the meaning of Section
280G(b)(2) of the Code; (c) the Change of Control Amount shall be
reduced only to the extent necessary so that the Total Payments (other
than those referred to in clauses (1) or (2)) in their entirety
constitute reasonable compensation for services actually rendered within
the meaning of Section 280G(b)(4) of the Code or are otherwise not
subject to disallowance as deductions, in the opinion of the tax counsel
referred to in clause (b); and (d) the value of any non cash benefit or
any deferred payment or benefit included in the Total Payments shall be
determined by the Bank's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.
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:
Xxxxxxx X. Xxxxxx 00 Xxxxx Xxxxx Xxxxxxx, XX
(x) 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: _______________________________
____________________________________
Xxxxxxx X. Xxxxxx
Executive
