Exhibit 10.6
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of August 31, 1998 (the
"Effective Date"), by and between Northway Financial, Inc. ("Northway"), a New
Hampshire chartered corporation and its subsidiary, Pemigewasset National Bank
("PNB") (collectively referred to as the "Employer") and Paul M. Ferguson (the
"Executive"). The Employer may, in its discretion, administer and discharge any
of its obligations through Northway, PNB, or both entities. In consideration of
the mutual covenants contained in this Agreement, the Employer and the Executive
agree as follows:
1. Employment. The Employer agrees to employ the Executive and
the Executive agrees to be employed by the Employer on the terms and
conditions set forth in this Agreement.
2. Capacity. The Executive shall serve as Executive Vice
President and Chief Operating Officer of PNB ("EVP/COO"), subject to
election by the Boards of Directors of both Northway and PNB (the
"Boards of Directors"). The Executive shall also serve the Employer in
such other or additional offices as the Executive may be requested to
serve by the Chief Executive Officer of PNB (the "CEO") or the Chairman
of Northway (the "Chairman"). In such capacity or capacities, the
Executive shall perform such services and duties in connection with the
business, affairs and operations of the Employer as may be assigned or
delegated to the Executive from time to time by or under the authority
of the CEO or the Chairman. Notwithstanding the foregoing, after the
Executive becomes Chief Executive Officer of PNB pursuant to Section 4
below, all references to "CEO" in this Agreement shall thereafter mean
the Chairman of PNB.
3. Term. Subject to the provisions of Section 7, the term of
employment pursuant to this Agreement (the "Term") shall be for two (2)
years from the Effective Date and shall be renewed automatically for
periods of one (1) year commencing at the first anniversary of the
Effective Date and on each subsequent anniversary thereafter, unless
either the Executive or the Employer gives written notice to the other
not less than sixty (60) days prior to the date of any such anniversary
of such party's election not to extend the Term.
4. Promotions. Subject to the Executive's satisfactory
performance on a continuing basis, as determined in the discretion of
the Employer, and further subject to the approval of the Boards of
Directors, the Executive shall be promoted to the following positions
in the following time frames: (a) the Executive shall be promoted to
the position of President and Chief Operating Officer of PNB in May,
1999; and (b) when PNB's current President and Chief Executive Officer,
Fletcher Adams, retires, the Executive shall be promoted to the
position of President and Chief Executive Officer of PNB. The Employer
states that as of the date of execution of this Agreement, Mr. Adams
has stated an intention to retire in the year 2000.
5. Compensation and Benefits. The regular compensation and
benefits payable to the Executive under this Agreement shall be as
follows:
1. Salary. For all services rendered by the Executive
under this Agreement, the Employer shall pay the Executive an
initial salary (the "Salary") at an annual rate of $117,500,
subject to such increases in conjunction with the promotions
described above in Section 4 that the Employer, in its
judgment, determines to be appropriate based upon the
accompanying changes in the Executive's responsibilities, and
further subject to any other increases that the Employer may,
in its discretion, determine to be appropriate from time to
time. The Salary shall be payable in periodic installments in
accordance with the Employer's usual practice for its senior
executives.
2. Bonus or Similar Incentive Programs. The Executive
shall be entitled to participate in any incentive or bonus
program established by the Northway Board of Directors to
include the Executive's position, with such terms as may be
established in the sole discretion of the Boards of Directors.
3. Regular Benefits. The Executive shall also be
entitled to participate in any employee benefit plans, medical
insurance plans, life insurance plans, disability income
plans, retirement plans, vacation plans, expense reimbursement
plans and other benefit plans in effect and generally
applicable to the senior executives of PNB. Such participation
shall be subject to the terms of the applicable plan
documents, generally applicable policies of the Employer,
applicable law and the discretion of the Boards of Directors
or any administrative or other committee provided for in or
contemplated by any such plan. Nothing contained in this
Agreement shall be construed to create any obligation on the
part of the Employer to establish any such plan or to maintain
the effectiveness of any such plan which may be in effect from
time to time.
4. Relocation Costs. To reduce the Executive's
expense associated with relocation, the Employer shall provide
the following to the Executive:
a) Temporary Housing Allowance. The Employer
shall pay to the Executive a monthly Temporary
Housing Allowance effective for the lesser of (A)
such period following the Effective Date until the
Executive obtains, by purchase or lease, a permanent
residence in the Plymouth, New Hampshire area; or (B)
six (6) months following the Effective Date. The
Temporary Housing Allowance for any month shall equal
the lesser of (Y) Seven Hundred Dollars ($700); or
(Z) the Executive's monthly rental or mortgage
payment plus the cost of electricity for a Plymouth,
New Hampshire area residence for such month.
b) Relocation Allowance. In lieu of any
relocation cost reimbursement other than the
Temporary Housing Allowance, the Employer shall pay
to the Executive a relocation allowance to cover all
of the costs that the Executive may incur in
connection with the transition from his current
residence in Mount Vernon, New Hampshire to a
permanent residence in the Plymouth, New Hampshire
area. The Relocation Allowance shall be in the amount
of up to Twenty Thousand Dollars ($20,000) to be paid
as follows: (A) Ten Thousand Dollars ($10,000)
promptly after the Effective Date; and (B) Ten
Thousand Dollars ($10,000) promptly after the
Executive obtains, by purchase or lease, a permanent
residence in the Plymouth, New Hampshire area,
provided that such relocation occurs not later than
six (6) months after the Effective Date. Such amounts
may be used for purposes related to the relocation as
determined in the Executive's discretion.
5. Taxation of Payments and Benefits. The Employer
shall undertake to make deductions, withholdings and tax
reports with respect to payments and benefits under this
Agreement to the extent that it reasonably and in good faith
believes that it is required to make such deductions,
withholdings and tax reports. Payments under this Agreement
shall be in amounts net of any such deductions or
withholdings. Nothing in this Agreement shall be construed to
require the Employer to make any payments to compensate the
Executive for any adverse tax effect associated with any
payments or benefits or for any deduction or withholding from
any payment or benefit.
6. Exclusivity of Salary and Benefits. Unless
approved by the Boards of Directors, the Executive shall not
be entitled to any payments or benefits other than those
provided under this Agreement.
6. Extent of Service. During the Executive's employment under
this Agreement, the Executive shall, subject to the direction and
supervision of the CEO or the Chairman, devote the Executive's best
efforts and business judgment, skill and knowledge to the advancement
of the Employer's interests and to the discharge of the Executive's
duties and responsibilities under this Agreement. The Executive shall
not engage in any other business activity, except as may be approved by
the CEO or the Chairman; provided that nothing in this Agreement shall
be construed as preventing the Executive from:
(a) investing the Executive's assets in any company
or other entity in a manner not prohibited by Section 8(d) and
in such form or manner as shall not require any material
activities on the Executive's 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
Executive's ability to fulfill the Executive's duties and
responsibilities under this Agreement.
7. Termination and Termination Benefits. Notwithstanding the
provisions of Section 3, the Executive's employment under this
Agreement shall terminate under the following circumstances set forth
in this Section 7.
(a) Termination by the Employer for Cause. The
Executive's employment under this Agreement may be terminated
for cause without further liability on the part of the
Employer effective immediately upon a majority vote of either
Board of Directors and written notice to the Executive. Only
the following shall constitute "cause" for such termination:
a) dishonest statements or acts of the
Executive with respect to the business of Northway,
PNB, or any affiliate of either of them;
b) the commission by or indictment of the
Executive for (A) a felony or (B) any misdemeanor
involving moral turpitude, deceit, dishonesty or
fraud ("indictment," for these purposes, meaning an
indictment, probable cause hearing or any other
procedure pursuant to which an initial determination
of probable or reasonable cause with respect to such
offense is made);
c) material failure to perform to the
reasonable satisfaction of either Board of Directors
a substantial portion of the Executive's duties and
responsibilities assigned or delegated under this
Agreement, which failure continues, in the reasonable
judgment of the Board of Directors that is taking
such action, for sixty (60) days after written notice
given to the Executive by such Board of Directors;
d) gross negligence, willful misconduct or
insubordination of the Executive with respect to the
Employer or any affiliate of the Employer; or
e) material breach by the Executive of any
of the Executive's obligations under this Agreement.
(b) Termination by the Executive. The Executive's
employment under this Agreement may be terminated by the
Executive by written notice to the CEO or the Chairman at
least thirty (30) days prior to such termination.
(c) Termination by the Employer Without Cause.
Subject to the payment of Termination Benefits pursuant to
Section 7(d), the Executive's employment under this Agreement
may be terminated by the Employer without cause upon written
notice to the Executive by a majority vote of either Board of
Directors.
(d) Certain Termination Benefits. Unless otherwise
specifically provided in this Agreement or otherwise required
by law, all compensation and benefits payable to the Executive
under this Agreement shall terminate on the date of
termination of the Executive's employment under this
Agreement. Notwithstanding the foregoing, in the event of
termination of the Executive's employment with the Employer
pursuant to Section 7(c) above, the Employer shall provide to
the Executive the following termination benefits ("Termination
Benefits"):
(i) continuation of the Executive's Salary
at the rate then in effect pursuant to Section 5(a);
and
(ii) continuation of group health plan
benefits to the extent authorized by and consistent
with 29 U.S.C. Section 1161 et seq. (commonly known
as "COBRA"), with the cost of the regular premium for
such benefits shared in the same relative proportion
by the Employer and the Executive as in effect on the
date of termination.
The Termination Benefits set forth in (i)
and (ii) above shall continue effective until the
expiration of the Term; provided that in the event
that the Executive commences any employment or
self-employment during the period during which the
Executive is entitled to receive Termination Benefits
(the "Termination Benefits Period"), the remaining
amount of Salary due pursuant to Section 7(d)(i) for
the period from the commencement of such employment
or self-employment to the end of the Termination
Benefits Period shall be reduced by one-half of the
salary or other cash compensation the Executive
receives from such employment or self-employment
attributable to services performed during the
Termination Benefits Period and, if the Executive
receives benefits from such employment or
self-employment comparable to those benefits provided
by the Employer, the payments provided under Section
7(d)(ii) shall cease effective as of the date of
commencement of such employment or self-employment.
The Employer's liability for Salary continuation
pursuant to Section 7(d)(i) shall be reduced by the
amount of any severance pay due or otherwise paid to
the Executive pursuant to any severance pay plan or
stay bonus plan of the Employer. Notwithstanding the
foregoing, nothing in this Section 7(d) shall be
construed to affect the Executive's right to receive
COBRA continuation entirely at the Executive's own
cost to the extent that the Executive may continue to
be entitled to COBRA continuation after the
Executive's right to cost sharing under Section
7(d)(ii) ceases. The Executive shall be obligated to
give prompt notice of the date of commencement of any
employment or self-employment during the Termination
Benefits Period and shall respond promptly to any
reasonable inquiries concerning any employment or
self-employment in which the Executive engages during
the Termination Benefits Period.
(e) Disability. If the Executive shall be disabled so
as to be unable to perform the essential functions of the
Executive's then existing position or positions under this
Agreement with or without reasonable accommodation, either
Board of Directors by a majority vote may remove the Executive
from any responsibilities and/or reassign the Executive to
another position with the Employer for the remainder of the
Term or during the period of such disability. Notwithstanding
any such removal or reassignment, the Executive shall continue
to receive the Executive's full Salary (less any disability
pay or sick pay benefits to which the Executive may be
entitled under the Employer's policies) and benefits under
Section 5 of this Agreement (except to the extent that the
Executive may be ineligible for one or more such benefits
under applicable plan terms) for a period of time equal to the
lesser of (i) one (1) year; or (ii) the remainder of the Term.
If any question shall arise as to whether during any period
the Executive is disabled so as to be unable to perform the
essential functions of the Executive's then existing position
or positions with or without reasonable accommodation, the
Executive may, and at the request of the Employer shall,
submit to the Employer a certification in reasonable detail by
a physician selected by the Employer to whom the Executive or
the Executive's guardian has no reasonable objection as to
whether the Executive is so disabled or how long such
disability is expected to continue, and such certification
shall for the purposes of this Agreement be conclusive of the
issue. The Executive shall cooperate with any reasonable
request of the physician in connection with such
certification. If such question shall arise and the Executive
shall fail to submit such certification, the Employer's
determination of such issue shall be binding on the Executive.
Nothing in this Section 7(e) shall be construed to waive the
Executive's rights, if any, under existing law including,
without limitation, the Family and Medical Leave Act of 1993,
29 U.S.C. Section 2601 et seq. and the Americans with
Disabilities Act, 42 U.S.C. Section 12101 et seq.
(f) Termination Following a Change of Control. If
there is a Change of Control, as defined in Section 7(f)(i)
below, during the Term, the provisions of this Section 7(f)
shall apply and shall continue to apply throughout the
remainder of the Term. If (1) the Executive's employment is
terminated by the Employer or the Executive following the
occurrence of any of the events listed in Section 7(f)(ii)
below or the Executive's employment is terminated without
cause (in accordance with Section 7(c) above); and (2) such
termination occurs both within twelve (12) months following a
Change of Control and during the Term, then the Employer shall
provide the Executive (or the Executive's estate, if
applicable) with Termination Benefits for two (2) years from
the date of termination of the Executive's employment. To the
extent that Termination Benefits would otherwise be due to the
Executive, this Section 7(f) shall not be construed to require
the provision of any additional pay or benefits to the
Executive.
(i) Change of Control shall mean the
occurrence of one or more of the following events:
(1) any "person" (as such term is used
in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended
(the "Exchange Act")) becomes a "beneficial
owner" (as such term is defined in Rule
13d-3 promulgated under the Exchange Act)
(other than Northway, any trustee or other
fiduciary holding securities under an
employee benefit plan of Northway, or any
corporation owned, directly or indirectly,
by the stockholders of Northway, in
substantially the same proportions as their
ownership of stock of Northway), directly or
indirectly, of securities of Northway,
representing fifty percent (50%) or more of
the combined voting power of Northway's then
outstanding securities; or
(2) persons who, as of the Effective
Date, constituted Northway's Board of
Directors (the "Incumbent Board") cease for
any reason including, without limitation, as
a result of a tender offer, proxy contest,
merger or similar transaction, to constitute
at least a majority of Northway's Board of
Directors, provided that any person becoming
a director of Northway subsequent to the
Effective Date whose election was approved
by at least a majority of the directors then
comprising the Incumbent Board shall, for
purposes of this Section 7(f), be considered
a member of the Incumbent Board; or
(3) the stockholders of Northway
approve a merger or consolidation of
Northway with any other corporation or other
entity, other than (1) a merger or
consolidation which would result in the
voting securities of Northway outstanding
immediately prior thereto continuing to
represent (either by remaining outstanding
or by being converted into voting securities
of the surviving entity) more than fifty
percent (50%) of the combined voting power
of the voting securities of Northway or such
surviving entity outstanding immediately
after such merger or consolidation or (2) a
merger or consolidation effected to
implement a recapitalization of Northway (or
similar transaction) in which no "person"
(as hereinabove defined) acquires more than
fifty percent (50%) of the combined voting
power of Northway's then outstanding
securities; or
(4) the stockholders of Northway
approve a plan of complete liquidation of
Northway or an agreement for the sale or
disposition by of all or substantially all
of Northway's assets.
(ii) The events referred to in Section 7(f)
above shall be as follows:
(A) a reduction of the Executive's
salary other than a reduction that (1) is
based on Northway's or PNB's financial
performance or (2) is similar to the
reduction made to the salaries provided to
all or most other senior executives of
Northway or PNB; or
(B) a significant change in the
Executive's responsibilities and/or duties
which constitutes, when compared to the
Executive's responsibilities and/or duties
before the Change of Control, a demotion.
(iii) The Executive shall provide Northway
with reasonable notice and an opportunity to cure any
of the events listed in Section 7(f)(ii) and shall
not be entitled to compensation pursuant to this
Section 7(f) unless Northway fails to cure within a
reasonable period; and
(iv) It is the intention of the Executive
and of Northway that no payments by Northway to or
for the benefit of the Executive under this Agreement
or any other agreement or plan, if any, pursuant to
which the Executive is entitled to receive payments
or benefits shall be nondeductible to Northway by
reason of the operation of Section 280G of the Code
relating to parachute payments or any like statutory
or regulatory provision. 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 or any like statutory
or regulatory provision, any such payments exceed the
amount which can be deducted by Northway, such
payments shall be reduced to the maximum amount which
can be deducted by Northway. 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
Northway 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 that no such payments shall
be nondeductible to Northway by reason of the
operation of said Section 280G or any like statutory
or regulatory provision. To the extent that there is
more than one method of reducing the payments to
bring them within the limitations of said Section
280G or any like statutory or regulatory provision,
the Executive shall determine which method shall be
followed, provided that if the Executive fails to
make such determination within forty-five (45) days
after Northway has given notice of the need for such
reduction, Northway may determine the method of such
reduction in its sole discretion.
8. Confidential Information, Noncompetition and Cooperation.
(a) Confidential Information. As used in this
Agreement, "Confidential Information" means information
belonging to the Employer which is of value to the Employer in
the course of conducting its business and the disclosure of
which could result in a competitive or other disadvantage to
the Employer. Confidential Information includes, without
limitation, financial information, reports, and forecasts;
inventions, improvements and other intellectual property;
trade secrets; know-how; designs, processes or formulae;
software; 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 Employer. Confidential Information includes
information developed by the Executive in the course of the
Executive's employment by the Employer, as well as other
information to which the Executive may have access in
connection with the Executive's employment. Confidential
Information also includes the confidential information of
others with which the Employer has a business relationship.
Notwithstanding the foregoing, Confidential Information does
not include information in the public domain, unless due to
breach of the Executive's duties under Section 8(b).
(b) Confidentiality. The Executive understands and
agrees that the Executive's employment creates a relationship
of confidence and trust between the Executive and the Employer
with respect to all Confidential Information. At all times,
both during the Executive's employment with the Employer and
after its termination, the Executive will keep in confidence
and trust all such Confidential Information, and will not use
or disclose any such Confidential Information without the
written consent of the Employer, except as may be necessary in
the ordinary course of performing the Executive's duties to
the Employer.
(c) Documents, Records, etc. All documents, records,
data, apparatus, equipment and other physical property,
whether or not pertaining to Confidential Information, which
are furnished to the Executive by the Employer or are produced
by the Executive in connection with the Executive's employment
will be and remain the sole property of the Employer. The
Executive will return to the Employer all such materials and
property as and when requested by the Employer. In any event,
the Executive will return all such materials and property
immediately upon termination of the Executive's employment for
any reason. The Executive will not retain with the Executive
any such material or property or any copies thereof after such
termination.
(d) Noncompetition and Nonsolicitation. During the
Term, and for one (1) year thereafter (or during the
Termination Benefits Period, if longer), the Executive (i)
will not, directly or indirectly, whether as owner, partner,
shareholder, consultant, agent, employee, co-venturer or
otherwise, engage, participate, assist or invest in any
Competing Business (as hereinafter defined); (ii) will refrain
from directly or indirectly employing, attempting to employ,
recruiting or otherwise soliciting, inducing or influencing
any person to leave employment with Northway or PNB (other
than terminations of employment of subordinate employees
undertaken in the course of the Executive's employment with
the Employer); and (iii) will refrain from soliciting or
encouraging any customer or supplier to terminate or otherwise
modify adversely its business relationship with Northway or
PNB; provided, however, that the restrictions set forth in the
foregoing sentence shall not apply in the event that the
Executive's employment under this Agreement is terminated
pursuant to Section 7(c) ("Termination by the Employer Without
Cause"). The Executive understands that the restrictions set
forth in this Section 8(d) are intended to protect the
Employer's interest in its Confidential Information and
established employee, customer and supplier relationships and
goodwill, and agrees that such restrictions are reasonable and
appropriate for this purpose. For purposes of this Agreement,
the term "Competing Business" shall mean a business conducted
anywhere in the State of New Hampshire which is competitive
with any business which Northway, PNB, or any of the
affiliates of either of them conducts or proposes to conduct
at any time during the employment of the Executive.
Notwithstanding the foregoing, the Executive may own up to one
percent (1%) of the outstanding stock of a publicly held
corporation which constitutes or is affiliated with a
Competing Business. Notwithstanding the foregoing, in the
event that the Executive becomes entitled to Termination
Benefits pursuant to Section 7(f) ("Termination Following a
Change of Control"), this Section 8(d) shall not apply to the
Executive with respect to the Executive's activities during
any period following the termination of the Executive's
employment.
(e) Third-Party Agreements and Rights. The Executive
hereby confirms that the Executive is not bound by the terms
of any agreement with any previous employer or other party
which restricts in any way the Executive's use or disclosure
of information or the Executive's engagement in any business.
The Executive represents to the Employer that the Executive's
execution of this Agreement, the Executive's employment with
the Employer and the performance of the Executive's proposed
duties for the Employer will not violate any obligations the
Executive may have to any such previous employer or other
party. In the Executive's work for the Employer, the Executive
will not disclose or make use of any information in violation
of any agreements with or rights of any such previous employer
or other party, and the Executive will not bring to the
premises of the Employer any copies or other tangible
embodiments of non-public information belonging to or obtained
from any such previous employment or other party.
(f) Litigation and Regulatory Cooperation. During and
after the Executive's employment, the Executive shall
cooperate fully with the Employer 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
Employer which relate to events or occurrences that transpired
while the Executive was employed by the Employer. The
Executive's full cooperation in connection with such claims or
actions shall include, but 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 Employer at mutually
convenient times. During and after the Executive's employment,
the Executive also shall cooperate fully with the Employer 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 Employer. The Employer
shall reimburse the Executive for any reasonable out-of-pocket
expenses incurred in connection with the Executive's
performance of obligations pursuant to this Section 8(f).
(g) Injunction. The Executive agrees that it would be
difficult to measure any damages caused to the Employer which
might result from any breach by the Executive of the promises
set forth in this Section 8, and that in any event money
damages would be an inadequate remedy for any such breach.
Accordingly, subject to Section 9 of this Agreement, the
Executive agrees that if the Executive breaches, or proposes
to breach, any portion of this Agreement, the Employer shall
be entitled, in addition to all other remedies that it may
have, to an injunction or other appropriate equitable relief
to restrain any such breach without showing or proving any
actual damage to the Employer.
9. Arbitration of Disputes. Any controversy or claim arising
out of or relating to this Agreement or the breach thereof or otherwise
arising out of the Executive's employment or the termination of that
employment (including, without limitation, any claims of unlawful
employment discrimination whether based on age or otherwise) shall, to
the fullest extent permitted by law, be settled by arbitration in any
forum and form agreed upon by the parties or, in the absence of such an
agreement, under the auspices of the American Arbitration Association
("AAA") in Boston, Massachusetts in accordance with the Employment
Dispute Resolution Rules of the AAA, including, but not limited to, the
rules and procedures applicable to the selection of arbitrators. In the
event that any person or entity other than the Executive or the
Employer may be a party with regard to any such controversy or claim,
such controversy or claim shall be submitted to arbitration subject to
such other person or entity's agreement. Judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction thereof. This Section 9 shall be specifically enforceable.
Notwithstanding the foregoing, this Section 9 shall not preclude either
party from pursuing a court action for the sole purpose of obtaining a
temporary restraining order or a preliminary injunction in
circumstances in which such relief is appropriate; provided that any
other relief shall be pursued through an arbitration proceeding
pursuant to this Section 9.
10. Consent to Jurisdiction. To the extent that any court
action is permitted consistent with or to enforce Section 9 of this
Agreement, the parties hereby consent to the jurisdiction of the
Superior Court of the State of New Hampshire and the United States
District Court for the District of New Hampshire. Accordingly, with
respect to any such court action, the Executive (a) submits to the
personal jurisdiction of such courts; (b) consents to service of
process; and (c) waives any other requirement (whether imposed by
statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process.
11. Integration. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements between the parties with respect to
any related subject matter.
12. Assignment; Successors and Assigns, etc. Neither the
Employer nor the Executive may make any assignment of this Agreement or
any interest herein, by operation of law or otherwise, without the
prior written consent of the other party; provided that the Employer
may assign its rights under this Agreement without the consent of the
Executive in the event that the Employer shall effect a reorganization,
consolidate with or merge into any other corporation, partnership,
organization or other entity, or transfer all or substantially all of
its properties or assets to any other corporation, partnership,
organization or other entity. This Agreement shall inure to the benefit
of and be binding upon the Employer and the Executive, their respective
successors, executors, administrators, heirs and permitted assigns.
13. Enforceability. If any portion or provision of this
Agreement (including, without limitation, any portion or provision of
any section of this Agreement) shall to any extent be declared illegal
or unenforceable by a court of competent jurisdiction, then the
remainder of this Agreement, or the application of such portion or
provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and
each portion and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
14. 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.
15. Notices. Any notices, requests, demands and other
communications provided for by this Agreement shall be sufficient if in
writing and delivered in person or sent by a nationally recognized
overnight courier service or by registered or certified mail, postage
prepaid, return receipt requested, to the Executive at the last address
the Executive has filed in writing with the Employer or, in the case of
the Employer, at its main offices, attention of the Boards of Directors
or the CEO, and shall be effective on the date of delivery in person or
by courier or three (3) days after the date mailed.
16. Amendment. This Agreement may be amended or modified only
by a written instrument signed by the Executive and by a duly
authorized representative of the Employer.
17. Governing Law. This is a New Hampshire contract and shall
be construed under and be governed in all respects by the laws of the
State of New Hampshire, without giving effect to the conflict of laws
principles of such State.
18. Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be
taken to be an original; but such counterparts shall together
constitute one and the same document.
19. Legal and Regulatory Limitations. All Termination Benefits
and all other obligations of the Employer to the Executive referred to
above in this Agreement are subject to any applicable legal or
regulatory limitations or approvals applicable to Northway and/or any
subsidiary of Northway, including, without implication of limitation,
PNB.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by Northway and PNB, each by an authorized officer, and by the
Executive, as of the Effective Date.
NORTHWAY FINANCIAL, INC.
Attest:
By: /S/ William J. Woodward
-----------------------
Name: William J. Woodward
Title: President and CEO
By: /S/ Joe N. Rozek
------------------
Name: Joe N. Rozek
Title: Assistant to the Office of the
Chairman of the Board
PEMIGEWASSET NATIONAL BANK
By: /S/ Fletcher W. Adams
---------------------
Name: Fletcher W. Adams
Title: President and CEO
EXECUTIVE
/S/ Paul M. Ferguson
---------------------------
Paul M. Ferguson