AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this ____ day of
October, 1996, by and between The People's Savings Bank of New Britain, a
Connecticut savings bank with its principal office and place of business in
New Britain, Connecticut ("Employer") and Xxxx X. Xxxxxx, a resident of
Newington, Connecticut ("Employee").
W I T N E S S E T H
WHEREAS, Employee and Employer are parties to an Employment Agreement
dated as of August 1, 1986 (the "Prior Agreement") which, among other
things, provides certain benefits to Employee upon a change in control of
Employer; and
WHEREAS, Employee and Employer have entered into a Change in Control
Agreement dated as of the date hereof (the "Change in Control Agreement"),
the provisions of which are intended to supersede the change in control
provisions in the Prior Agreement; and
WHEREAS, Employee and Employer desire to amend and restate the Prior
Agreement, upon the terms and conditions set forth herein, to delete from
the Prior Agreement such change in control provisions and to make clear the
terms under which Employee desires to remain in the employ of Employer, and
under which the Employer desires to continue to employ Employee.
NOW THEREFORE, in consideration of the promises and the mutual
covenants herein contained, the parties hereto, intending to be legally
bound, do hereby mutually covenant and agree as follows:
1. Employment.
Employer hereby agrees to employ Employee as Executive Vice President
and Treasurer of Employer for the Term of Employment, as defined in Section
2.1, and Employee accepts said employment and agrees to serve in such
capacity upon the terms and conditions hereinafter set forth.
2. Definitions.
2.1 "Term of Employment" shall mean the period commencing with the
date hereof and ending on December 31, 1999. The Term of Employment shall
automatically be extended on each January 1 hereafter by adding an
additional year to the then remaining period of employment without further
notice or action of the parties; provided that either party may serve
written notice to the other at least three (3) months prior to any such
January 1 of its desire that the period of employment not be further
automatically extended as provided herein, in which event there shall
thereafter be no such further automatic extensions of the Term of
Employment.
Notwithstanding the foregoing, the Term of Employment shall end one
(1) day after the occurrence of any of the following events:
(a) Employee's termination for "Cause" (as defined in Section
2.3);
(b) unilateral termination of Employee's employment by Employee
other than as permitted under Section 5.2;
(c) unilateral termination of Employee's employment by Employer
prior to a Change of Control as defined in a Change in
Control Agreement;
(d) the death of Employee; or
(e) the "permanent disability" of Employee (as defined in
Section 2.2);
(f) Payment in full to Employee of the "Severance Amount" as
provided for in the Change in Control Agreement.
2.2 Employee's "permanent disability," as this phrase is used
throughout this Agreement, shall mean Employee's disability as defined
under the long-term disability insurance policy of Employer as in effect
from time to time.
2.3 "Cause," as this term is used throughout this Agreement, shall
mean:
(a) Employee's failure to be available to work on a full-time
basis in the position set forth in Section 1 hereof other
than as a result of a permanent disability, if such failure
shall not have been cured by Employee within thirty (30)
days after receipt from Employer of written notice of a
claimed breach by Employee; or
(b) willful material misconduct by Employee, including, but not
limited to, the commission by Employee of a felony or the
perpetration by Employee of a common law fraud upon
Employer,
in the case of (a) or (b) above, as determined in good faith by a vote of
at least 75% of the members of Employer's Board of Directors.
2.4 A "Person" shall include natural person, corporation, or other
entity. When two (2) or more persons act as a partnership, limited
partnership, syndicate, or other group for the purpose of acquiring,
holding, or disposing of Employer common stock, such partnership,
syndicate, or group shall be considered a Person. Beneficial ownership
shall be determined under the then current provisions of Securities
Exchange Act of 1934 Rule 13d-3, 17 C.F.R. Section 240.13d-3.
3. Duties of Employment.
Employee agrees that, so long as he shall be employed by Employer,
Employee shall perform all duties assigned or delegated to him under the
By-Laws of Employer or from time to time by the Board of Directors of
Employer consistent with his position as a senior executive officer of
Employer, and shall perform all acts and services customarily associated
with such position, devoting his full time, best efforts and attention to
the advancement of the interests and business of Employer. Employee shall
not be engaged in or concerned with any other duties or pursuits which are
competitive or inconsistent with the interests and business of Employer.
It is understood that Employee may have directorships which may, from time
to time, require minor portions of his time, but which shall not interfere
or be inconsistent with his duties hereunder.
4. Compensation.
During the Term of Employment, Employer shall pay to Employee as
compensation for the services to be rendered by him hereunder the
following:
(a) Employer shall pay to Employee a base salary at the rate of
$129,012.00 per year, or such larger sum as the Board of Directors of
Employer may from time to time determine (the "Base Rate"). Such
compensation shall be payable in accordance with normal payroll practices
of Employer.
(b) In addition, Employee shall receive an annual increase in
the Base Rate at each normal pay adjustment date during such Term of
Employment, but no later than one (1) year from the date of Employee's last
increase and annually thereafter during such Term of Employment, of not
less than the percentage increase in the cost-of-living since Employee's
last pay adjustment, as measured by the Consumer Price Index-All Urban
Consumers of the U.S. Bureau of Labor Statistics, except that no such
increase shall be made at any time during which a salary freeze applicable
to all executive employees of Employer generally may be in effect.
(c) Employer shall provide life insurance on the life of
Employee in an amount equal to twice the Base Rate, payable to a
beneficiary selected by Employee, and shall provide comprehensive health
insurance and Major Medical coverage for Employee comparable to such
coverage provided for officers of Employer generally. Employer shall also
provide Employee with long-term disability insurance coverage. Employee
shall be eligible to participate in the pension plan of Employer in
accordance with the terms thereof.
(d) Except as otherwise set forth herein, if Employee should be
prevented from performing his duties by reason of illness or incapacity or
for any other cause for an aggregate of six months in any one year, then
Employer shall not be obligated to pay Employee any salary or bonus for any
period of absence (except for absence during paid vacation as provided
herein) in excess of the aggregate of six months in any such year.
5. Termination of Employment.
5.1 If Employee's employment is unilaterally terminated by Employer
during the Term of Employment, for any reason other than the reasons
provided in Section 2.3 hereof, Employee shall be entitled to receive, and
Employer shall be obligated to pay to Employee, the following amounts:
(a) severance pay in an amount equal to the salary compensation
of Employee defined in Sections 4(a) and 4(b) hereof for an additional
twelve (12) months at the then current rate, from which shall be subtracted
only the amount, if any, payable to Employee under any then effective
severance pay plan of Employer (which, for purposes hereof, shall not
include any amount payable to Employee pursuant to the Change in Control
Agreement), the foregoing net amount to be paid in cash in the month next
following Employee's termination of employment.
(b) an amount equal to the aggregate amounts that Employer would
have contributed on behalf of Employee under Employer's Deferred Profit
Sharing Plan, if any such plan shall be in effect, for an additional twelve
(12) months had Employee continued in the employ of Employer for such
additional twelve (12) months and made contributions under said plan at a
rate, as a percentage of salary, equal to the average rate at which
Employee had made contributions to said plan in the period, not exceeding
three (3) fiscal years of Employer, preceding Employee's termination;
(c) supplemental pension benefits equal to the difference
between (i) the annual pension benefit that would have been payable to
Employee under the Retirement Plan of Employer (the "Plan") if Employee had
been continued in the employ of Employer for an additional twelve (12)
months and had received compensation at least equal to that specified in
Section 4 of this Agreement until such time and (ii) the annual pension
benefit actually payable to Employee under the Plan, such supplemental
pension benefits to be payable at the same time and in the same manner as
benefits under the Plan;
(d) to the extent that any form of compensation previously
granted to Employee, such as, by way of example only, restricted stock or
performance share awards, shall not be fully vested or shall require
additional service as an employee at the time of the termination of
Employee's employment, Employee shall be credited with additional service
for an additional twelve (12) months;
(e) for an additional twelve (12) months, Employee shall also
continue to participate in all life, health, disability and similar
insurance plans and programs of Employer to the extent that such continued
participation is possible under the general terms and provisions of such
plans and programs, with Employer and Employee paying the same portion of
the cost of each such plan or program as existed at the time of Employee's
termination. In the event that Employee's continued participation in any
group plans and programs is not permitted, then in lieu thereof, Employer
shall acquire, with the same cost sharing, individual insurance policies
providing comparable coverage for Employee; provided that Employer shall
not be obligated to pay for any such individual coverage more than three
(3) times Employer's cost of such group coverage; and provided further, if
any such individual coverage is unavailable, then Employer shall pay to
Employee for such additional twelve (12) month period an amount equal to
the sum of the average annual contributions, payments, credits, or
allocations made by Employer for such insurance on Employee's behalf over
the three (3) fiscal years of Employer preceding the termination of his
employment; and
(f) Employee shall continue to receive for an additional twelve
(12) months such perquisites as he was receiving at the time of the
termination of his employment.
5.2 Employee shall have the right during the Term of Employment, at
his sole option, by thirty (30) days' advance written notice to the Board
of Directors of Employer, to terminate his services hereunder upon the
occurrence of any action by Employer which (i) significantly reduces
Employee's job responsibilities, (ii) results in a significant worsening of
Employee's work conditions, or (iii) requires a relocation by Employee to a
place of work outside of New Britain, Connecticut. Termination of
Employee's services under this Section 5.2 shall be deemed a unilateral,
involuntary termination of employment by Employer and shall be governed by
the provisions of Section 5.1 hereof. Subject to the provisions of Section
7, Employee shall have no further obligation under this Agreement.
5.3 Employee shall have no duty to mitigate damages in the event of a
termination under the terms of Sections 5.1 or 5.2 or in the event of his
permanent disability under Section 5.4, and if he voluntarily obtains other
employment (including self-employment), any compensation or profits
received or accrued, directly or indirectly, from such other employment
shall not reduce or otherwise affect the obligations of Employer to make
payments hereunder.
5.4 If the employment of Employee shall terminate during the Term of
Employment by reason of the permanent disability of Employee, all payments
that would have been due to Employee under this Agreement had he remained
in the employ of Employer for an additional twelve (12) months reduced by
the amount of disability insurance payments made to Employee under any
policy or plan maintained by Employer, shall continue to be made to him for
an additional twelve (12) months, or until he shall no longer be considered
permanently disabled under Section 2.2, if earlier. If Employee shall die
following a termination of his employment under Section 5.1 or 5.2, or
following a termination during the Term of Employment by reason of the
permanent disability of Employee, all payments that would have been due to
Employee under this Agreement had he lived for a period of twelve (12)
months following the termination of his employment shall be made instead to
such beneficiary as Employee shall have designated in writing. To the
extent that neither Employee nor his designee shall live for such twelve
(12) month period following the termination of Employee's employment, after
the death of the second of them to die, said payments shall be made to the
estate of such person. If Employee shall die without a beneficiary
designation in effect, said payments shall be made to Employee's estate.
5.5 If the employment of Employee shall terminate at a time other
than during the Term of Employment, or if said employment shall terminate
for any of the reasons provided in Section 2.3 hereof, or if Employee shall
unilaterally terminate his employment other than as permitted under Section
5.2, all payments that would have been due to Employee under this Agreement
on or after the date of such termination shall cease, and Employer shall
have no further obligations under this Agreement other than for amounts
accrued but not paid as of the date of such termination.
6. Other Benefits
6.1 During the Term of Employment while actively employed, Employee
shall be entitled to and shall be included in any employee welfare or
pension benefit plan or program of Employer available generally to the
employees of Employer to the extent that he is eligible to participate
under the general provisions of such plans.
6.2 During the Term of Employment while actively employed, Employee
shall be entitled each year to a vacation of at least four (4) weeks, and
during such time his compensation shall be paid in full. The period of
vacation selected each year shall be with the approval of the Employer.
Vacation time which is not taken by the Employee in any year may be
deferred and taken in the first quarter of the following year or, at the
option of the Employer, shall be purchased by the Employer at a per diem
rate calculated on the basis of Employee's then base salary.
7. Confidential Information
Employee understands that in the course of his employment by Employer,
Employee will receive confidential information concerning the business or
purposes of Employer, and which Employer desires to protect. Employee
agrees that he will not at any time during or after the Term of Employment
reveal to anyone outside Employer or use for his own benefit any such
information that has been designated as confidential by Employer or
understood by Employee to be confidential without specific written
authorization by Employer. Employee further agrees not to use any such
confidential information or trade secrets in competing with Employer at any
time during or after his employment by Employer.
8. Covenants by Employee Not to Compete With Employer
(a) Upon termination of Employee's employment by Employer for
any reason (other than a termination pursuant to Sections 5.1 or 5.2 of
this Agreement), Employee covenants and agrees that he will not at any time
during the period of one (1) year from and after such termination directly
or indirectly in any manner or under any circumstances or conditions
whatsoever be or become interested, as an individual, partner, principal,
agent, clerk, employee, stockholder, officer, director, trustee, or in any
other capacity whatsoever, except as a nominal owner of stock of a public
corporation, in any other business similar to the business of Employer or
in any way in competition with the business of Employer within any of the
City of New Britain and the Towns of Berlin, Meriden, Newington, Rocky
Hill, Southington and Plainville, all in the State of Connecticut.
For purposes of this section (a), "Employer" shall be limited to the
People's Savings Bank of New Britain, and the "business of Employer" shall
be limited to its business as a Connecticut savings bank, and any other
lines of business developed or entered into by it, its holding company
Peoples Savings Financial Corp., or any subsidiary of the foregoing, during
the term of this Agreement, but shall not include lines of business of any
successor or affiliated corporation in which Employee is not directly
involved.
(b) Employee hereby acknowledges that his services are unique and
extraordinary, and are not readily replaceable, and hereby expressly agrees
that Employer in enforcing the covenants contained in this Section, in
addition to any other remedies provided for herein or otherwise available
at law, shall be entitled in any court of equity having jurisdiction to an
injunction restraining him in the event of a breach, actual or threatened,
of the agreements and covenants contained in this Paragraph.
(c) The parties hereto believe that the restrictive covenants of this
Section are reasonable. However, if at any time it shall be determined by
any court of competent jurisdiction that this Section or any portion of it,
as written, is unenforceable because the restrictions are unreasonable, the
parties hereto agree that such portions as shall have been determined to be
unreasonably restrictive shall thereupon be deemed so amended as to make
such restrictions reasonable in the determination of such court, and said
covenants, as so modified, shall be enforceable between the parties to the
same extent as if such amendments had been made prior to the date of any
alleged breach of said covenants.
9. Termination Upon Change of Control.
Notwithstanding anything contained herein to the contrary, this
Agreement shall terminate and be of no further force and effect upon the
payment in full to Employee of the "Severance Amount" as provided for in
the Change in Control Agreement.
10. Notices.
All notices under this Agreement shall be in writing and shall be
deemed effective when delivered in person to Employee or to the Secretary
of Employer, or if mailed, postage prepaid, registered or certified mail,
addressed, in the case of Employee, to his last known address as carried on
the personnel records of Employer, and, in the case of Employer, to the
corporate headquarters, attention of the Secretary, or to such other
address as the party to be notified may specify by notice to the other
party.
11. Successors and Assigns
The rights and obligations of Employer under this Agreement shall
inure to the benefit of and shall be binding upon the successors and
assigns of Employer, including, without limitation, any corporation,
individual or other person or entity which may acquire all or substantially
all of the assets and business of Employer, or of any division of Employer
for which Employee has primary management responsibility, or with or into
which Employer may be consolidated or merged or any surviving corporation
in any merger involving Employer. All references in this Agreement to
Employer shall be deemed to include all such successors and assigns and,
upon the occurrence of any event giving rise to any Person becoming a
successor or assign bound hereunder by the Agreement, Employer shall be
thereby relieved of any further obligation or liability under this
Agreement, except for any amounts due and payable to Employee under the
provisions hereof immediately prior to the occurrence of such event.
12. Arbitration.
Any dispute which may arise between the parties hereto shall be
submitted to binding arbitration in accordance with the Rules of the
American Arbitration Association; provided that any such dispute shall
first be submitted to Employer's Board of Directors in an effort to resolve
such dispute without resort to arbitration. In any dispute which is
submitted to arbitration, the attorney's fees of the prevailing party shall
be paid by the other party.
13. Severability
If any of the terms or conditions of this Agreement shall be declared
void or unenforceable by any court or administrative body of competent
jurisdiction, such term or condition shall be deemed severable from the
remainder of this Agreement, and the other terms and conditions of this
Agreement shall continue to be valid and enforceable.
14. Construction.
This Agreement shall be construed under the laws of the State of
Connecticut. Words of masculine gender mean and include correlative words
of the feminine gender. Section headings are for convenience only and
shall not be considered a part of the terms and provisions of the
Agreement.
IN WITNESS WHEREOF, Employer has caused this Agreement to be executed
by a duly authorized officer and Employee has hereunto set his hand, this
____ day of October, 1996.
THE PEOPLE'S SAVINGS BANK OF NEW BRITAIN
By
Its
XXXX X. XXXXXX
