Exhibit 10.8
KEY EMPLOYEE AGREEMENT
THIS AGREEMENT is made as of the 19th day of August, 1999 by and among The
Berlin City Bank, a New Hampshire bank with its main office in Berlin, New
Hampshire (the "Subsidiary"), Xxxxxxxx Financial, Inc. a New Hampshire
corporation ("Xxxxxxxx") (Xxxxxxxx and the Subsidiary shall be hereinafter
collectively referred to as the "Company"), and _______., a resident of _______
_____________ (the "Executive").
WHEREAS in order to allow the Executive to consider the prospect of a
Change in Control (as defined in Section 1) in an objective manner and in
consideration of the services to be rendered by the Executive to the Company and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the Company, the Company is willing to provide, subject
to the terms of this Agreement, certain severance benefits to protect the
Executive from the consequences of a Terminating Event (as defined in Section 1)
occurring subsequent to a Change in Control; and
WHEREAS, in consideration of the continued employment of the Executive by
the Company, the entering into by Xxxxxxxx of that certain stock option
agreement between Xxxxxxxx and the Executive of even date herewith providing for
participation by the Executive in Xxxxxxxx'x 1999 Stock Option and Grant Plan,
the severance benefits provided subject to the terms herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Executive, the Executive agrees to be bound by certain
restrictions contained herein regarding competition, Confidential Information
(as defined in Section 1) and proprietary rights.
1. Certain Definitions. For the purposes of this Agreement, the following
terms shall have the following respective meanings:
(a) "Change in Control" shall be deemed to have occurred in any one of the
following events:
(i) if there has occurred a change in control of either Xxxxxxxx or
the Subsidiary which Xxxxxxxx would be required to report in
response to Item 1 (or, in the case of the Subsidiary, Item 2)
of Form 8-K promulgated under the Securities Exchange Act of
1934, as amended (the "1934 Act"), or, if such regulation is no
longer in effect, any regulations promulgated by the Securities
and Exchange Commission, pursuant to the 1934 Act, which are
intended to serve similar purposes;
(ii) when any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the 0000 Xxx) becomes a "beneficial owner" (as such
term is defined in Rule 13d-3 promulgated under the 1934 Act),
directly or indirectly, of securities of Xxxxxxxx or the
Subsidiary representing 25% or more of the total number of
votes that may be cast for the election of directors of
Xxxxxxxx or the Subsidiary, as the case may be;
(iii) during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals
who are Continuing Directors (as hereinafter defined) cease for
any reason to constitute at least a majority of the Board of
Directors of Xxxxxxxx or the Subsidiary. For this purpose, a
"Continuing Director" shall mean (a) an individual who was a
director of Xxxxxxxx or the Subsidiary at the beginning of such
period or (b) any new director (other than a director
designated by a person who has entered into an agreement with
Xxxxxxxx or the Subsidiary to effect a transaction described in
clause (ii), (iv) or (v) of this Section 1(a)) whose election
by the Board or nomination for election by Xxxxxxxx'x or the
Subsidiary's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors of Xxxxxxxx or the
Subsidiary, as appropriate, then still in office who either
were directors at the beginning of such period or whose
election or nomination for election was previously so approved;
(iv) the stockholders of Xxxxxxxx approve a merger or consolidation
of Xxxxxxxx or the Subsidiary with any other corporation or
bank, other than (a) a merger or consolidation which would
result in the voting securities of Xxxxxxxx outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) more than 80% of the
combined voting power of the voting securities of Xxxxxxxx or
such surviving entity outstanding immediately after such merger
or consolidation or (b) a merger or consolidation effected to
implement a recapitalization of Xxxxxxxx (or similar
transaction) in which no "person" (as defined above) acquires
more than 30% of the combined voting power of Xxxxxxxx'x then
outstanding securities; or
(v) the stockholders of Xxxxxxxx or the Subsidiary approve a plan
of complete liquidation of Xxxxxxxx or the Subsidiary or an
agreement for the sale or disposition by Xxxxxxxx or the
Subsidiary of all or substantially all of Xxxxxxxx'x or the
Subsidiary's assets;
(b) "Company-Related Inventions and Developments" means all Inventions and
Developments which either (i) relate at the time of conception or
development to the actual or demonstrably anticipated business or
research and development activities of the Company; (ii) result from
or relate to any work performed for the Company, whether or not during
normal business hours; (iii) are developed on Company work time; or
(iv) are developed through the use of Confidential Information, or the
Company's equipment, software, or other facilities or resources;
(c) "Confidential Information" means information belonging to the Company,
whether reduced to writing (or in a form from which such information
can be obtained, translated, or derived into reasonably usable form),
or maintained in the mind or memory of the Executive, which derives
independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic value
from the disclosure or use of such information, including without
limitation, financial information, reports, and forecasts; inventions,
improvements and other intellectual property; trade secrets; know-how;
designs, processes or formulae; software or related code; market or
sales information or plans; customer lists; and business plans,
prospects and opportunities (such as possible acquisitions or
dispositions of businesses or facilities) which have been discussed or
considered by the management of the Company. Confidential Information
includes information developed by the Executive in the course of his
employment by the Company, as well as other information to which the
Executive may have access in connection with his employment.
Confidential Information also includes the confidential information of
others with which the Executive has a business relationship.
Notwithstanding the foregoing, Confidential Information does not
include information in the public domain, unless due to breach of the
duties of the Executive under Section 5 below;
(d) "Customer" means any person or entity who (i) is receiving Services,
directly or indirectly, from the Company on the date of termination of
employment of the Executive with the Company, (ii) received Services,
directly or indirectly, from the Company or the Executive at any time
during the two year period immediately preceding the date of
termination of employment of the Executive with the Company, (iii) was
solicited, directly or indirectly, in whole or in part, by the
Executive on behalf of the Company to provide Services within two
years preceding the termination of employment of the Executive with
the Company, or (iv) anyone solicited, directly or indirectly, in
whole or in part, on behalf of the Company to provide Services within
two years preceding the termination of employment of the Executive
with the Company;
(e) "Inventions and Developments" means any and all inventions,
developments, creative works and useful ideas of any description
whatsoever, whether or not patentable, including without limitation,
discoveries and improvements which consist of or relate to any form of
Confidential Information;
(f) "Restricted Term" means the aggregate period equal to the period
during which the Executive is employed by the Company, plus a period
of 1.5 years immediately following the termination of employment of
the Executive with the Company;
(g) "Services" means banking and bank-related services, and such other
services that are similar to and competitive with services the Company
may provide or develop plans to provide during the employment of the
Executive;
(h) "Terminating Event" shall mean:
(i) termination by either of Xxxxxxxx or the Subsidiary of the
employment of the Executive with either of Xxxxxxxx or the
Subsidiary for any reason other than (A) death, (B) deliberate
dishonesty of the Executive with respect to Xxxxxxxx or the
Subsidiary or any subsidiary or affiliate of either, or (C)
conviction of the Executive of a crime involving moral turpitude,
or
(ii) resignation of the Executive from the employ of both of Xxxxxxxx
and the Subsidiary, while the Executive is not receiving payments
or benefits from either of Xxxxxxxx or the Subsidiary by reason
of the Executive's disability, subsequent to the occurrence of
any of the following events:
(A) a significant change in the nature or scope of the
Executive's responsibilities, authorities, powers, functions
or duties from the responsibilities, authorities, powers,
functions or duties exercised by the Executive immediately
prior to the Change in Control; or
(B) a determination by the Executive that, as a result of a
Change in Control, he is unable to exercise the
responsibilities, authorities, powers, functions or duties
exercised by the Executive immediately prior to such Change
in Control; or
(C) a reduction in the Executive's annual base salary as in
effect on the date hereof or as the same may be increased
from time to time except for across-the-board salary
reductions similarly affecting all management personnel of
the Company and all management personnel of any person in
control of the Company; or
(D) the failure by the Company to pay to the Executive any
portion of his current compensation or to pay to the
Executive any portion of an installment of deferred
compensation under any deferred compensation program of the
Company within seven (7) days of the date such compensation
is due; or
(E) the failure by the Company to continue in effect any material
compensation, incentive, bonus or benefit plan in which the
Executive participates immediately prior to the Change in
Control, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with
respect to such plan, or the failure by the Company to
continue the Executive's participation therein (or in such
substitute or alternative plan) on a basis not materially
less favorable, both in terms of the amount of benefits
provided and the level of the Executive's participation
relative to other participants, as existed at the time of the
Change in Control; or
(F) the failure by the Company to continue to provide the
Executive with benefits substantially similar to those
available to the Executive under any of the life insurance,
medical, health and accident, or disability plans or any
other material benefit plans in which the Executive was
participating at the time of the Change in Control, or the
taking of any action by the Company which would directly or
indirectly materially reduce any of such benefits, or the
failure by the Company to provide the Executive with the
number of paid vacation days to which the Executive is
entitled on the basis of years of service with the Company in
accordance with the Company's normal vacation policy in
effect at the time of the Change in Control; or
(G) the failure of the Company to obtain a satisfactory agreement
from any successor(s) to assume and agree to perform this
Agreement.
2. Severance Payments. In the event a Terminating Event occurs within one (1)
year after a Change in Control, the Company shall pay to the Executive, in
periodic installments in accordance with the Company's usual practice for its
senior executives, for a period of 1.5 years from the date of such Terminating
Event, a annualized amount equal to the annual compensation paid by the Company
to the Executive which was includible in the gross income of the Executive for
the calendar year ending before the date on which the Change in Control occurs;
provided, that if the Executive is in breach of his obligations under Section 7,
the Company may withhold amounts otherwise due to the Executive under this
Section 2 until the Executive has cured such breach or is otherwise in
compliance with Section 7.
3. Limitation on Benefits.
(a) It is the intention of the Executive and the Company that no payments
by the Company to or for the benefit of the Executive under this Agreement or
any other agreement or plan pursuant to which he is entitled to receive payments
or benefits shall be non-deductible to the Company by reason of the operation of
Section 280G of the Internal Revenue Code of 1986 , as amended (the "Code")
relating to parachute payments. Accordingly, and notwithstanding any other
provision of this Agreement or any such agreement or plan, if by reason of the
operation of said Section 280G, any such payments exceed the amount which can be
deducted by the Company, such payments shall be reduced to the maximum amount
which can be deducted by the Company. To the extent that payments exceeding such
maximum deductible amount have been made to or for the benefit of the Executive,
such excess payments shall be refunded to the Company with interest thereon at
the applicable Federal Rate determined under Section 1274(d) of the Code,
compounded annually, or at such other rate as may be required in order than no
such payments shall be non-deductible to the Company by reason of the operation
of said Section 280G. To the extent that there is more than one method of
reducing the payments to bring them within the limitations of said Section 280G,
the Executive shall determine which method shall be followed, provided that if
the Executive fails to make such determination within 45 days after the Company
has sent him written notice of the need for such reduction, the Company may
determine the method of such reduction in its sole discretion.
(b) If any dispute between the Company and the Executive as to any of the
amounts to be determined under this Section 3, or the method of calculating such
amounts, cannot be resolved by the Company and the Executive, either the Company
or the Executive after giving three days written notice to the other, may refer
the dispute to a partner in the Boston office of a firm of independent certified
public accountants selected jointly by the Company and the Executive. The
determination of such partner as to the amount to be determined under Section
3(a) and the method of calculating such amounts shall be final and binding on
both the Company and the Executive. The Company shall bear the costs of any such
determination.
4. Extent of Service. During the Executive's employment with the Company, the
Executive shall, subject to the direction and supervision of the Company, devote
his full business time, best efforts and business judgment, skill and knowledge
to the advancement of the Company's interests and to the discharge of his duties
and responsibilities under this Agreement. The Executive shall not engage in any
other business activity, except as may be approved by the Company; provided that
nothing in this Agreement shall be construed as preventing the Executive from:
(a) investing his assets in any company or other entity in a manner not
prohibited by Section 7 below and in such form or manner as shall not
require any material activities on his part in connection with the
operations or affairs of the companies or other entities in which such
investments are made; or
(b) engaging in religious, charitable or other community or non-profit
activities that do not impair the ability of the Executive to fulfill
his duties and responsibilities under this Agreement.
5. Confidentiality. The Executive acknowledges and agrees that his employment
creates a relationship of confidence and trust with the Company with respect to
all Confidential Information. At all times, both during the Executive's
employment with the Company and after the termination of such employment, the
Executive shall keep in confidence and trust all such Confidential Information,
and shall not use or disclose any such Confidential Information without the
written consent of the Company, except as may be necessary in the ordinary
course of performing his duties to the Company. In furtherance of the foregoing:
(a) Documents, Records, etc. All documents, records, data, apparatus,
equipment and physical property, whether or not pertaining to Confidential
Information or Company-Related Inventions and Developments, which are furnished
to the Executive by the Company or are produced by the Executive in connection
with his employment shall be and remain the sole property of the Company. The
Executive shall return to the Company all such materials and property, including
any material or medium from which any Confidential Information may be
ascertained or derived, as and when requested by the Company. In any event, the
Executive shall return all such materials and property immediately upon
termination of his employment for any reason. The Executive shall not retain any
such material or property or any copies, compilations, or analyses thereof after
such termination.
(b) Assignment of Inventions and Developments. The Executive agrees that
all Company-Related Inventions and Developments which he conceives or develops,
in whole or in part, either alone or jointly with others, during the term of his
employment with the Company shall be the sole property of the Company. The
Company shall be the sole owner of all patents, copyrights and other proprietary
rights in and with respect to such Company-Related Inventions and Developments.
To the fullest extent permitted by law, such Company-Related Inventions and
Developments shall be deemed works made for hire. The Executive hereby transfers
and assigns to the Company any proprietary rights which he may have or acquire
in any such Company-Related Inventions and Developments, and the Executive
hereby waives any other special rights which he may have or accrue therein. The
Executive agrees to execute any documents and take any actions that may be
required to effect and confirm such transfer, assignment and waiver. The
provisions of this Section 5(b) shall apply to all Company-Related Inventions
and Developments which are conceived or developed by the Executive during the
term of his employment with the Company, whether or not further development or
reduction to practice may take place after termination of such employment, for
which purpose it shall be presumed that any Company-Related Inventions and
Developments conceived by the Executive which are reduced to practice within one
year after termination of the employment of the Executive were conceived during
the term of the Executive's employment with the Company unless the Executive is
able to establish a later conception date by clear and convincing evidence. THE
EXECUTIVE HEREBY REPRESENTS AND WARRANTS TO THE COMPANY THAT ALL INVENTIONS AND
DEVELOPMENTS MADE BY THE EXECUTIVE PRIOR TO HIS EMPLOYMENT BY THE COMPANY ARE
DISCLOSED IN EXHIBIT A ATTACHED TO THIS AGREEMENT. The Executive agrees promptly
to disclose to the Company, or to persons designated by the Company, all
Company-Related Inventions and Developments which are or may be subject to the
provisions of this Section 5(b). The Executive further agrees to assist the
Company, at the Company's request from time to time and at its expense, to
obtain and enforce patents, copyrights or other proprietary rights with respect
to Company-Related Inventions and Developments in any and all countries and the
Executive agrees that he shall execute all documents reasonably necessary or
appropriate for this purpose. This obligation of the Executive shall survive the
termination of employment of the Executive, provided that the Company shall
compensate the Executive at a reasonable rate after such termination for time
actually spent by the Executive at the Company's request on such assistance. In
the event that the Company is unable for any reason to secure the Executive's
signature to any document reasonably necessary or appropriate for any of the
foregoing purposes (including renewals, extensions, continuations, divisions or
continuations in part), the Executive hereby irrevocably designates and appoints
the Company and its duly authorized officers and agents as the Executive's
agents and attorneys-in-fact to act for the Executive and on behalf of the
Executive, but only for the purpose of executing and filing any such document
and doing all other lawfully permitted acts to accomplish the foregoing
purposes, with the same legal force and effect as if it had been executed or
done by the Executive.
6. Nonsolicitation of Customers. During the Restricted Term, regardless of
the reason for termination of the employment of the Executive, the Executive
shall not, directly or indirectly, in any capacity:
(a) solicit the business or patronage of any Customer for any other person
or entity engaged in or for the purpose of providing Services;
(b) divert, entice, or otherwise take away from the Company the business
or patronage of any Customer, or attempt to do so;
(c) solicit or induce any Customer to terminate or reduce its relationship
with the Company;
(d) provide or assist with the provision of Services to a Customer (except
in his capacity as an employee of the Company); or
(e) refer a Customer to another provider of Services.
7. Unfair Competition. During the Restricted Term, regardless of the reason
for termination of employment of the Executive, the Executive shall not,
directly or indirectly, in any capacity, whether as owner, partner, director,
shareholder, consultant, agent, employee, co-venturer or otherwise, engage,
participate, assist or invest in any business activity anywhere in the State of
New Hampshire, or any county in another state that is contiguous to a county
where Xxxxxxxx or any of its subsidiaries or affiliates has an office, where the
Company directly or indirectly provides or uses Services or the Company is
preparing to provide Services, if such business activity involves the
development, production, sale, provision or marketing of Services or products or
services like or similar to, or otherwise competitive with the Services. The
foregoing shall not prevent the Executive from owning up to one percent of the
outstanding securities of a publicly-held corporation which competes with the
Company, or from being employed by or affiliated or associated with any person
or entity after termination of the employment of the executive with the Company
so long as the Executive does not have any direct or indirect involvement on
behalf of any such person or entity with respect to developing, producing,
selling, providing or marketing Services. Notwithstanding any provision of this
Agreement to the contrary, in the event a Terminating Event occurs following a
Change in Control, the Executive shall not be subject to the restrictions
outlined above in this Section 7 for a period in excess of six (6) months from
the date of such Terminating Event.
8. Nonsolicitation of Employees. During the Restricted Term, regardless of
the reason for termination of the employment of the Executive, the Executive
shall not directly or indirectly, in any capacity:
(a) hire or employ, directly or indirectly, through any enterprise with
which the Executive is associated, any current employee or agent of
the Company or any individual who had been employed by or served as an
agent to the Company within one year preceding the date of termination
of employment of the Executive; or
(b) recruit, solicit or induce (or in any way assist another person or
enterprise in recruiting, soliciting or inducing) any employee or an
agent of the Company to terminate his or her employment or other
relationship with the Company.
9. Acknowledgments. The Executive acknowledges and agrees that the
restrictions set forth in Sections 5, 6, 7 and 8 are intended to protect the
Company's interest in its Confidential Information and its commercial
relationships and goodwill (with its customers, prospective customers, vendors,
consultants and employees), or developed while the Executive was employed by the
Company, and are reasonable and appropriate for these purposes.
10. Disclosure of Agreement. The Executive agrees that he shall disclose the
existence and terms of this Agreement to any prospective company, partner,
co-venturer, investor or lender prior to entering into an employment,
partnership or other business relationship with such person or entity.
11. Third-Party Agreements and Rights. The Executive hereby confirms that he
is not bound by the terms of any agreement with any previous company or other
party which restricts in any way his use or disclosure of information or his
engagement in any business. The Executive hereby represents and warrants to the
Company that the execution by the Executive of this Agreement, the employment by
the Executive with the Company and the performance of the proposed duties of the
Executive for the Company will not violate any obligations the Executive may
have to any such previous company or other party. In the Executive's work for
the Company, the Executive agrees that he shall not disclose or make use of any
information in violation of any agreements with or rights of any such previous
company or other party, and he shall not bring to the premises of the Company
any copies or other tangible embodiments of non-public information belonging to
or obtained from any such previous employment or other party.
12. Litigation and Regulatory Cooperation. During and after the employment of
the Executive by the Company, the Executive shall cooperate fully with the
Company in the defense or prosecution of any claims or actions now in existence
or which may be brought in the future against or on behalf of the Company which
relate to events or occurrences that transpired while the Executive was employed
by the Company. The full cooperation of the Executive in connection with such
claims or actions shall include, but shall not be limited to, being available to
meet with counsel to prepare for discovery or trial and to act as a witness on
behalf of the Company at mutually convenient times. During and after the
employment of the Executive by the Company, the Executive shall cooperate fully
with the Company in connection with any investigation or review of any federal,
state or local regulatory authority as any such investigation or review relates
to events or occurrences that transpired while the Executive was employed by the
Company. The Company shall reimburse the Executive for any reasonable
out-of-pocket expenses incurred in connection with the performance by the
Executive of obligations pursuant to this Section 12.
13. Injunction. The Executive acknowledges and agrees that it would be
difficult to measure any damages caused to the Company which might result from
any breach by the Executive of the promises set forth in this Agreement, and
that in any event money damages would be an inadequate remedy for any such
breach. Accordingly, the Executive agrees that if the Executive breaches, or
threatens to breach, any portion of this Agreement, the Company shall be
entitled, in addition to, and not in substitution for, all other remedies that
it may have, at law or in equity, to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving any
actual damage to the Company.
14. Severability. The parties hereto agree that if any provisions of this
Agreement shall be adjudicated to be invalid or unenforceable, such provision
shall be deleted from the Agreement, but such deletion is to apply only with
respect to the operation of such provision in the particular jurisdiction in
which such adjudication is made, and the validity or enforceability of any other
provision hereof shall not be affected thereby. The parties hereto further agree
that to the extent any provision hereof is deemed unenforceable by virtue of its
scope in terms of area or length of time or for any other reason, but may be
made enforceable by limitations thereon, such provision shall be enforceable to
the fullest extent permissible under the laws and public policies applied in the
jurisdiction in which enforcement is sought.
15. Entire Agreement. This Agreement contains the entire and only agreement
between the parties hereto respecting the subject matter hereof and supersedes
all prior agreements and understandings between the parties as to the subject
matter hereof.
16. Survival of Obligations; Extension. The Executive acknowledges and agrees
that his obligations under this Agreement shall survive the termination of his
employment with the Company regardless of the manner of or reasons for such
termination, and regardless of whether such termination constitutes a breach of
this Agreement or of any other agreement the Executive may have with the
Company.
17. Assignment. The Executive shall not make any assignment of this Agreement
or any interest herein, by operation of law or otherwise, without the prior
written consent of Xxxxxxxx, and without such consent any attempted transfer
shall be null and void and of no effect. The Company shall not make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the Executive, and without such
consent any attempted transfer shall be null and void and of no effect;
provided, that the Company may assign all or any portion of its rights under
this Agreement: (a) to any of its affiliates, (b) by operation of law to any
corporation or other entity with or into which the Company may be merged or
consolidated, or (c) to any corporation or other entity to which the Company
transfers all or substantially all of its assets; provided such corporation or
other entity assumes this Agreement and all obligations and undertakings of the
Company hereunder.
18. Binding Effect. This Agreement shall inure to the benefit of, and be
binding upon, and enforceable against Xxxxxxxx, the Subsidiary and the Executive
, their respective successors, executors, administrators, heirs and permitted
assigns. In the event of the Executive's death prior to the completion by the
Company of all payments due to him under this Agreement, the Company shall
continue such payments to the Executive's beneficiary designated in writing to
the Company prior to his death (or to his estate, if he fails to make such
designation).
19. Amendment. This Agreement may not be amended except in a writing signed by
all parties hereto.
20. No Contract of Employment. Nothing in this Agreement shall be construed as
a contract of employment between the Executive and the Company or as a
commitment on the part of the Company to retain the Executive in any capacity
for any period of time.
21. Notices. Any notices, requests, demands and other communications provided
for by this Agreement will be sufficient if in writing and delivered in person
or sent by registered or certified mail, postage prepaid, to the Executive at
the address set out below the signature of the Executive below and, in the case
of any notice to the Company, at the main office of Xxxxxxxx, to the attention
of its President and Chief Executive Officer.
22. Governing Law. The validity, construction, and enforceability of this
Agreement shall be governed by and construed in all respects in accordance with
the laws of the State of New Hampshire without giving effect to the conflict of
laws provisions thereof. This Agreement is executed under seal.
23. Term. This Agreement shall take effect as of the date hereof and shall
terminate upon expiry of the Restricted Term.
24. Withholding. All payments made by the Company under this Agreement shall
be net of any tax or other amounts required to be withheld by the Company under
applicable law.
25. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled by arbitration
in accordance with the laws of the State of New Hampshire by three arbitrators,
one of whom shall be appointed by the Company, one by the Executive and the
third by the first two arbitrators. If the first two arbitrators cannot agree on
the appointment of a third arbitrator, then the third arbitrator shall be
appointed by the American Arbitration Association in the City of Concord. Such
arbitration shall be conducted in the City of Concord in accordance with the
rules of the American Arbitration Association, except with respect to the
selection of arbitrators which shall be as provided in this Section 25. Judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. In the event that it shall be necessary or desirable for
the Executive to retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of any or all of the Executive's rights under
this Agreement, the Company shall pay (or the Executive shall be entitled to
recover from the Company, as the case may be) the Executive's reasonable
attorneys' fees and other reasonable costs and expenses in connection with the
enforcement of said rights (including the enforcement of any arbitration award
in court) regardless of the final outcome, unless and to the extent the
arbitrators shall determine that under the circumstances of recovery by the
Executive of all or a part of any such fees and costs and expenses would be
unjust. This provision shall not apply to Section 3(b), except in the event that
the Company and the Executive cannot agree on the selection of the accounting
partner described in said Section 3(b).
26. Allocation of Obligations. Xxxxxxxx and the Subsidiary shall allocate
among themselves which party shall be responsible for paying the severance
payments and other benefits directed by this Agreement. The payment by either
party of such severance payments and other benefits shall satisfy the
obligations of the non-paying party under this Agreement. Both Xxxxxxxx and the
Subsidiary shall be jointly liable in the event of a failure by both parties to
pay such severance payments and other benefits.
27. Waiver. No waiver of any provision hereof shall be effective unless made
in writing and signed by the waiving party. The failure of any party to require
the performance of any term or obligation of this Agreement, or the waiver by
any party of any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any subsequent
breach.
28. Election of Remedies. An election by the Executive to resign after a
Change in Control under the provisions of this Agreement shall not constitute a
breach by the Executive of any employment agreement between the Company and the
Executive and shall not be deemed a voluntary termination of employment by the
Executive for the purpose of interpreting the provisions of any of the Company's
benefit plans, programs or policies. Nothing in this Agreement shall be
construed to limit the rights of the Executive under any employment agreement he
may then have with the Company; provided, however, that if there is a
Terminating Event under Section 1 hereof, the Executive may elect either to
receive the severance payment provided under Section 2 or such termination
benefits as he may under any such employment agreement, but may not elect to
receive both.
29. Amendment. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by duly authorized representatives of
each of Xxxxxxxx and the Subsidiary.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by Xxxxxxxx, by its duly authorized officer, by the Subsidiary, by
its duly authorized officer, and by the Executive, as of the date first above
written.
WITNESS:
_______________________________ _____________________________
ATTEST: THE BERLIN CITY BANK
________________________________ By:__________________________
Title: ______________________
Clerk
[Seal]
ATTEST: XXXXXXXX FINANCIAL, INC.
________________________________ By:__________________________
Title:_______________________
Clerk
[Seal]
EXHIBIT A
INVENTIONS AND DEVELOPMENTS MADE BY EXECUTIVE
PRIOR TO EMPLOYMENT BY THE COMPANY
Nil
