EXHIBIT 1O.1 (a)
HARRY P. DiADAMO, JR. EMPLOYMENT AGREEMENT
AGREEMENT, dated as of December 3, 1985, between Derby Savings Bank, a
Connecticut-chartered savings bank located in Derby, Connecticut, (the "Bank")
and Harry P. DiAdamo, Jr., of Orange, Connecticut (the "Employee").
WHEREAS, the Employee is currently serving as President (Chief
Executive Officer) and Treasurer of the Bank;
WHEREAS, the Board of Directors of the Bank has approved and
authorized the entry into this Agreement with the Employee;
WHEREAS, this Agreement shall supercede the existing employment
agreement, dated December 21, 1984, between the Bank and the Employee;
WHEREAS, the parties desire to enter into this Agreement setting forth
the terms and conditions for the employment relationships of the Employee with
the Bank.
NOW, THEREFORE, it is AGREED as follows:
1. EMPLOYMENT. The Employee is employed as President (Chief
Executive Officer and Treasurer of the Bank from the date hereof through the
term of this Agreement. As the Chief Executive Officer of the Bank, the
Employee shall render executive, policy, and other management services to the
Bank of the type customarily performed by persons serving in similar executive
officer capacities with savings banks. The Employee shall also perform such
duties as the Board of Directors of the Bank may from time to time reasonably
direct. During the term of this Agreement, there shall be no material
increase or decrease in the duties and responsibilities of the Employee
otherwise than as provided herein, unless the parties otherwise agree in
writing. During the term of this Agreement, the Employee shall not be
required to relocate outside of New Haven County in order to perform the
services hereunder.
2. COMPENSATION. The Bank agrees to pay the Employee during the
term of this Agreement a salary as follows: from the date hereof through
December 31, 1985, a salary at an annual rate equal to $95,000, with the salary
to be increased on January 1 of each year during the term of this Agreement as
determined by the Board of Directors of the Bank, but not less than by 6% over
the prior year's salary. In determining salary increases, the Board of
Directors of the
Bank shall compensate the Employee for increases in the cost of living and may
also provide for performance or merit increases. The salary of the Employee
shall not be decreased at any time during the term of this Agreement from the
amount then in effect, unless the Employee otherwise agrees in writing.
Participation in deferred compensation, discretionary bonus, retirement, and
other employee benefit plans and in fringe benefits shall not reduce the salary
payable to the Employee under this Section 2. The salary under this Section 2
shall be payable to the Employee not less frequently than bi-weekly.
3. DISCRETIONARY BONUSES. During the term of this Agreement, the
Employee shall be entitled to participate in an equitable manner with all other
executive employees of the Bank in such discretionary bonuses as may be
authorized, declared, and paid by the Board of Directors of the Bank to its
executive employees. No other compensation provided for in this Agreement shall
be deemed a substitute for the Employee's right to participate in such bonuses
when and as declared by the Board of Directors.
4. PARTICIPATION IN RETIREMENT AND EMPLOYEE BENEFIT
PLANS; FRINGE BENEFITS.
(a) The Employee shall be entitled to participate in any
plan of the Bank and its parent relating to stock options, stock purchases,
pension, thrift, profit sharing, group life insurance, medical coverage,
education, or other retirement or employee benefits that the Bank has adopted or
may adopt for the benefit of its executive employees. The Bank intends to adopt
a Stock Option Plan in connection with the conversion to stock form. If such
Stock Option Plan is adopted and the Employee is not granted options (intended
to qualify as incentive stock options) in December 1985 to purchase shares of
common stock with a fair market value of $150,000 and in January 1986 to
purchase shares of common stock with a fair market value of $100,000, the Bank
will pay to the Employee compensation equal to the fair market value of such
options, taking into account the tax benefits to the Employee of the receipt of
incentive stock options.
(b) The Employee shall also be entitled to participate in any other
fringe benefits which are now or may be or become applicable to the Bank's
executive employees, including the payment of reasonable expenses for attending
seminars and educational programs relating to the Bank's business and attending
annual and periodic meetings of trade associations or conventions (including the
associated expenses
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of his spouse), as well as any other benefits which are commensurate with the
duties and responsibilities to be performed by the Employee under this
Agreement.
(c) The Employee shall also have an expense account in the amount of
$7,500 per year, commencing on January 1 of each year, against which he may draw
to meet expenses which he has incurred in connection with his services
hereunder.
(d) The Bank shall provide the Employee with the use of an automobile
and shall pay directly, or by promptly reimbursing the Employee, all costs
incident to such use, including gas, oil, repair and maintenance.
(e) The Bank shall continue to pay the premiums on a certain whole
life insurance policy in the face amount of $125,000 owned by the Employee. The
annual premiums are approximately $1750.
(f) The Bank shall continue to pay the premiums on disability
insurance policies with Aetna Insurance Company and Federal Home Life Insurance
Company which presently cover the Employee.
5. TERM. The initial term of employment under this Agreement shall
be from the date hereof through December 31, 1989. This Agreement shall be
automatically renewed for one additional year on December 31, 1986 and on each
December 31 thereafter, unless either the Employee or the Bank gives contrary
written notice to the other party hereto prior to such anniversary date. Each
initial term and all such renewed terms are collectively referred to herein as
the term of this Agreement.
6. STANDARDS. The Employee shall perform the Employee's duties and
responsibilities under this Agreement in accordance with such reasonable
standards as may be established from time to time by the Board of Directors of
the Bank. The reasonableness of such standards shall be measured against
standards for executive performance generally prevailing in the savings bank
industry.
7. VOLUNTARY ABSENCES; VACATIONS. The Employee shall be entitled,
without loss of pay, to be absent voluntarily for reasonable periods of time
from the performance of the duties and responsibilities under this Agreement.
All such voluntary absences shall count as paid vacation time, unless the Board
of Directors of the Bank otherwise approves. The Employee shall be entitled to
an annual paid vacation of at
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least four weeks per year or such longer period as the Board of Directors of the
Bank may approve. The timing of paid vacations shall be scheduled in a
reasonable manner by the Employee. The Employee shall be entitled to receive
cash compensation in lieu of two weeks of paid vacation per year. He shall not
be entitled to receive any additional compensation from the Bank on account of
failure to take the remaining two weeks of paid vacation.
8. TERMINATION OF EMPLOYMENT.
(a) (i) The Board of Directors of the Bank may terminate the
Employee's employment at any time, but any termination by the Board of Directors
other than termination for cause shall not prejudice the Employee's right to
compensation or other benefits under this Agreement. The Employee shall have no
right to receive compensation or other benefits for any period after termination
for cause. The term "termination for cause" shall mean termination because of
the Employee's personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, or material
breach of any provision of this Agreement. In determining incompetence, the acts
or omissions shall be measured against standards generally prevailing in the
savings bank industry; PROVIDED, that it shall be the Bank's burden to prove the
alleged acts and omissions and the prevailing nature of the standards the Bank
shall have alleged are violated by such acts and/or omissions.
(ii) The parties acknowledge and agree that damages which
will result to Employee for termination without cause shall be extremely
difficult or impossible to establish or prove, and agree that, unless the
termination is for cause, the Bank shall be obligated, concurrently with such
termination, to make a lump sum cash payment to the Employee as liquidated
damages of an amount equal to the Employee's then current salary under Section 2
of this Agreement calculated for a period equal to the remaining term of this
Agreement; provided, however, that if the termination of employment occurs in
connection with or as a result of a "change in control," as defined in Section
9(b) hereof, the amount payable to the Employee under this Section 8(a)(ii)
shall not exceed the amount that will be payable under Section 9(a) as limited
by Section 9(c). Employee agrees that, except for such other payments and
benefits to which the Employee may be entitled as expressly provided by the
terms of this Agreement, such
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liquidated damages shall be in lieu of all other claims which Employee may make
by reason of such termination. Such payment to the Employee shall be made on or
before the Employee's last day of employment with the Bank. The liquidated
damages amount shall not be reduced by any compensation which the Employee may
receive for other employment with another employer after termination of
employment with the Bank.
(iii) In addition to the liquidated damages above
described that are payable to the Employee for termination without cause or in
the event of any termination subject to Section 9 hereof, the Employee shall
also be entitled to have all vested retirement or employee benefits and then
existing fringe benefits of the type referred to in Section 4 hereof continue
for the remaining term of this Agreement, except as otherwise required by law or
provided in the related retirement or other employee benefit plans or
agreements; PROVIDED, that, upon such termination or at the earliest date
thereafter which shall be permitted by applicable law, the Bank shall pay all
amounts necessary to fully fund as to the Employee, each and every pension,
retirement, profit-sharing, or other similar plan or fringe benefit as provided
above; and, PROVIDED further, that all insurance or other provisions for
indemnification, defense or hold-harmless of officers or directors of the Bank
which are in effect on the date the notice of termination is sent to the
Employee shall continue for the benefit of the Employee with respect to all acts
and omissions while serving as an officer or director as fully and completely as
if such termination had not occurred, and until the final expiration or running
of all periods of limitation against action which may be applicable to such acts
or omissions.
(b) The Employee shall have no right to terminate employment
under this Agreement prior to the end of the term of this Agreement, unless such
termination is approved by the Board of Directors of the Bank or is in
connection with or within two years after a change in control (as defined in
Section 9(b) hereof) of the Bank. In the event that the Employee violates this
Provision, the Bank shall be entitled, in addition to its other legal remedies,
to enjoin the employment of the Employee with any significant competitor of the
Bank for a period of one year or the remaining term of this Agreement plus six
months, whichever is less. The term "significant competitor" shall mean any
commercial bank, savings bank, savings and loan association, or mortgage banking
company, or a holding company affiliate of any of the foregoing, which at the
date of its employment of the Employee has total consolidated assets, or a loan
servicing portfolio,
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of $150 million or more and an office within thirty miles of any office of the
Bank.
(c) In the event the employment of the Employee is terminated
by the Bank without cause under Section 8(a) hereof or the Employee's employment
is terminated voluntarily or involuntarily in accordance with Section 9 hereof
and the Bank fails to make timely payment of the amounts then owed to the
Employee under this Agreement, the Employee shall be entitled to reimbursement
for all reasonable costs, including attorneys' fees, incurred by the Employee in
taking action to collect such amounts or otherwise to enforce this Agreement,
plus interest on such amounts at the rate of one percent above the prime rate
(defined as the base rate on corporate loans at large U.S. money center
commercial banks as published by the WALL STREET JOURNAL), compounded monthly,
for the period from the date of employment termination until payment is made to
the Employee. Such reimbursement and interest shall be in addition to all
rights which the Employee is otherwise entitled to under this Agreement.
(iv) Notwithstanding any other provision in this Agreement,
the Bank may terminate or suspend this Agreement and the employment of the
Employee hereunder to the extent required by the saving bank law of the State of
Connecticut, by applicable federal law relating to deposit insurance or by
regulations or orders issued by the Banking Commissioner of the State of
Connecticut or the Federal Deposit Insurance Corporation.
9. CHANGE IN CONTROL.
(a) If during the term of this Agreement there is a change in
control of the Bank, the Employee shall be entitled to receive as a severance
payment for services previously rendered to the Bank a lump sum cash payment as
provided for herein (subject to Section 9(c) below) in the event the Employee's
employment is terminated, voluntarily or involuntarily, in connection with or
within two years after the change in control of the Bank. Subject to Section
9(c) below, the amount of this payment shall equal three times the Employee's
average annual compensation which was payable by the Bank and was includible in
the Employee's gross income for federal income tax purposes with respect to the
five most recent taxable years of the Bank ending prior to such change in
control of the Bank (or such portion of such period during which the Employee
was a full-time employee of the Bank), less one dollar. Payment under this
Section 9(a) shall be in lieu of any amount owed to the Employee as liquidated
damages for
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termination without cause under Sections 8(a)(i) and (ii) hereof. However,
payment under this Section 9(a) shall not be reduced by any compensation which
the Employee may receive from other employment with another employer after
termination of the Employee's employment with the Bank. In addition, Section
8(a)(iii) shall apply in the case of any termination of employment within the
scope of this Section 9(a).
(b) A "change in control," for purposes of this Agreement, shall
be deemed to have taken place if: (i) any person becomes the beneficial owner of
20 percent or more of the total number of voting shares of the Bank; (ii) any
person becomes the beneficial owner of 10 percent or more, but less than 20
percent of the total number of voting shares of the Bank, if the Board of
Directors of the Bank has made a determination that such beneficial ownership
constitutes or will constitute control of the Bank; (iii) any person (other than
the persons named as proxies solicited on behalf of the Board of Directors of
the Bank) holds revocable or irrevocable proxies, as to the election or removal
of two or more directors of the Bank, for 25 percent or more of the total number
of voting shares of the Bank; (iv) any person has commenced a tender or exchange
offer, or entered into an agreement or received an option, to acquire beneficial
ownership of 20 percent or more of the total number of voting shares of the
Bank, whether or not the requisite regulatory approval for such acquisition has
been received; or (v) as the result of, or in connection with, any cash tender
or exchange offer, merger, or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions, the
persons who were directors of the Bank before such transaction shall cease to
constitute at least two-thirds of the Board of Directors of the Bank or any
successor institution. For purposes of this Section 9(b), a "person" includes
an individual, corporation, partnership, trust or group acting in concert. A
person for these purposes shall be deemed to be a beneficial owner as that term
is used in Rule 13d-3 under the Securities Exchange Act of 1934.
(c) Not withstanding any other provisions of this Agreement or
of any other agreement, contract, or understanding heretofore or hereafter
entered into between the Employee and the Bank, except an agreement, contract,
or understanding hereafter entered into that expressly modifies or excludes
application of this Section 9(c) (the "Other Agreements"), and notwithstanding
any formal or informal plan or other arrangement heretofore or hereafter adopted
by the Bank for the direct or indirect provision of compensation to the Employee
(including groups or classes of participants or beneficiaries
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of which the Employee is a member), whether or not such compensation is
deferred, is in cash, or is in the form of a benefit to or for the Employee (a
"Benefit Plan"), the Employee shall not have any right to receive any payment or
other benefit under this Agreement, any Other Agreement, or any Benefit Plan if
such payment or benefit, taking into account all other payments or benefits to
or for the Employee under this Agreement, all Other Agreements, and all Benefit
Plans, would cause any payment to the Employee under this Agreement to be
considered a "parachute payment" within the meaning of Section 28OG(b)(2) of the
Internal Revenue Code of 1954, as amended (the "Code") (a "Parachute Payment").
In the event that the receipt of any such payment or benefit under this
Agreement, any Other Agreement, or any Benefit Plan would cause the Employee to
be considered to have received a Parachute Payment under this Agreement, then
the Employee shall have the right, in the Employee's sole discretion, to
designate those payments or benefits under this Agreement, any Other Agreements,
and/or any Benefit Plans, which should be reduced or eliminated so as to avoid
having the payment to the Employee under this Agreement be deemed to be a
Parachute Payment.
10. DISABILITY. If the Employee shall become disabled or
incapacitated to the extent that the Employee is unable to perform the
Employee's duties and responsibilities hereunder, the Employee shall be entitled
to receive disability benefits of the type provided for other executive
employees of the Bank.
11. NO ASSIGNMENTS. This Agreement is personal to each of the
parties hereto. No party may assign or delegate any rights or obligations
hereunder without first obtaining the written consent of the other party hereto.
However, in the event of the death of the Employee all rights to receive
payments hereunder shall become rights of the Employee's estate.
12. OTHER CONTRACTS. The Employee shall not, during the term of
this Agreement, have any other paid employment other than with a subsidiary
of the Bank, except with the prior approval of the Board of Directors of the
Bank.
13. AMENDMENTS OR ADDITIONS; ACTION BY BOARD OF DIRECTORS. No
amendments or additions to this Agreement shall be binding unless in writing and
signed by all parties hereto. The prior approval by a two-thirds affirmative
vote of the full Board of Directors of the Bank shall be required in order for
the Bank to authorize any amendments or additions to this Agreement, to give any
consents or waivers of provisions of this Agreement, or to take any other action
under this
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Agreement including any termination of employment with or without cause under
Section B(a) hereof.
14. SECTION HEADINGS. The section headings used in this Agreement
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
15. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
16. GOVERNING LAW, This Agreement shall be governed by the laws of
the State of Connecticut.
DERBY SAVINGS BANK
ATTEST: /S/ JANET B. WILLIAMS BY:
--------------------- -------------------------
Asst. (Secretary) Chairman
/S/ HARRY P. DiADAMO, JR.
-------------------------
HARRY P. DiADAMO, JR.
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AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (this "Amendment") is made as
of August 31, 1987 between DERBY SAVINGS BANK (the "Bank") and Harry P. DiAdamo,
Jr. (the "Employee").
WHEREAS, the Employee is presently serving as President, Chief
Executive Officer and Treasurer of the Bank pursuant to that certain Employment
Agreement dated as of December 3, 1985 (the "Agreement") between the Employee
and the Bank;
WHEREAS, effective August 31, 1987 the Bank became a wholly-owned
subsidiary of DS Bancor, Inc. ("Bancor");
WHEREAS, the Employee is also presently serving as President and Chief
Executive officer of Bancor;
WHEREAS, the parties hereto desire to make clarifying amendments to
the Agreement to reflects the holding company formation and the acquisition of
the Bank by Bancor; and
WHEREAS, the Boards of Directors of Bancor and the Bank have approved
and authorized the entry of Bancor and the Bank into this Amendment;
NOW, THEREFORE, it is AGREED as follows:
1. Section 1 of the Agreement is amended in its entirety to read as
follows:
1. EMPLOYMENT. The Employee is employed as President (Chief
Executive Officer) and Treasurer of the Bank from the date hereof
through the term of this Agreement. Effective as of August 31, 1987,
the Employee is also employed as President (Chief Executive Officer)
of DS Bancor, Inc. ("Bancor"). Bancor and the Bank are sometimes
referred to herein collectively and individually as the "Employers."
As the Chief Executive Officer of the Employers, the Employee shall
render executive, policy, and other management services to the
Employers of the type customarily performed by persons serving in
similar executive officer capacities with savings banks and holding
companies thereof.