Exhibit 10.9
NON-COMPETITION, CONFIDENTIALITY
AND SEVERANCE AGREEMENT
AGREEMENT made and entered into as of this 28st day of April, 2003 by and
between The First National Bank of Ipswich, a national banking association
having its principal place of business in Ipswich, Massachusetts ("Bank"), and
Jay S. Dunham of Londonderry, New Hampshire (the "Employee").
WITNESSETH THAT:
1. Term; Not a Contract of Employment. The term of this Agreement
commences on the date hereof and continues until termination of Employee's
employment. This is not a contract of employment, and does not confer upon
employee any right to employment or to continued employment.
2. Salary; Benefits. Employee's annual base salary on the date hereof is
$140,000 and Employee is entitled to receive the benefits described on Exhibit A
attached hereto.
3. Non-competition. At all times while the Employee is employed by the
Bank, and for a period of one (1) year thereafter, or the period (if any) during
which the Bank is paying the Employee pursuant to Section 6 hereof, whichever is
longer, the Employee shall not, directly or indirectly, as an employee of any
person or entity (whether or not engaged in business for profit), individual
proprietor, partner, stockholder, director, officer, joint venture, investor,
lender or in any other capacity whatever (otherwise than as holder of less than
ten (10) percent of any securities publicly traded in the market) compete with
Bank or any subsidiary or affiliate of Bank in any city or town in which the
Bank or such subsidiary or affiliate operates, or within any contiguous city or
town.
4. No Solicitation of Employees. At all times while Employee is employed
by the Bank, and for a period of one (1) year thereafter, or the period (if any)
during which the Bank is paying the Employee pursuant to Section 6 hereof,
whichever is longer, the Employee shall not, directly or indirectly, employ,
attempt to employ, recruit or otherwise solicit, induce or influence any
employee of the Bank or any subsidiary or affiliate of Bank to leave his or her
employment.
5. No Disclosure of Information. The Employee shall not at any time
divulge, use, furnish, disclose or make accessible to anyone other than the
Bank, or as applicable its subsidiaries and affiliates, any knowledge or
information with respect to confidential or secret data, procedures or
techniques of the Bank, its subsidiaries or affiliates, provided, however, that
nothing in this Section 5 shall prevent the disclosure by the Employee of any
such information which at any time comes in to the public domain other than as a
result of the violation of the terms of this Section 5 by the Employee or which
is otherwise lawfully acquired by the Employee.
6. Payments Upon Termination by Bank other than for Cause. If the
employment of the Employee is terminated for any reason other than (i) for Cause
(as defined below), or (ii) on account of Employee's death, disability or
retirement by the Bank, then in any such case the Bank shall continue to pay to
the Employee, or to his personal representatives in case of his death, the
Employee's base salary in effect as of the date of such termination (which shall
not include any bonus) for the respective periods following the date of such
termination as follows:
(i) In the case of such termination within 12 months following a
Change in Control (as hereinafter defined), for a period equal to one (1) year,
provided that such payments shall not exceed $200,000.
(ii) In the case of any other such termination for a period equal to
one (1) year.
A "Change in Control" shall occur if the Raymond Family shall cease to
own, in the aggregate, at least 51% of the common stock of First Ipswich Bancorp
("Bancorp") or, if applicable, at least 51% of the common stock of the surviving
entity in any merger, consolidation or reorganization to which Bancorp is a
party, the entity to which all or substantially all of the assets of the Bank or
Bancorp are sold, or the entity which assumes all or substantially all of the
deposits of the Bank. The "Raymond Family" shall mean Neil St. John Raymond, his
spouse, issue and their spouses, and trusts of which any of the described
persons is a beneficiary, which shall include trusts or custodianship
arrangements under retirement plans, and custodian, nominee, agency or similar
arrangements created by or which benefit any of the described persons.
Termination of the Employee's employment shall be "Cause" if:
(i) The Employee is convicted by a court of competent jurisdiction
of any criminal offense involving dishonesty or breach of trust;
(ii) The Employee shall commit an act of fraud;
(iii) The Employee refuses to perform the duties reasonably assigned
to him by the Board of Directors of the Bank, which failure or breach continues
for more than ten (10) days after written notice given to the Employee, such
notice to set forth in reasonable detail the nature of such refusal; or
(iv) The Employee engages in willful misconduct which is materially
injurious to the Bank or its affiliates, monetarily or otherwise.
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Notwithstanding any other term of this Agreement, the Employee agrees and
acknowledges that the payments provided for in this Section 6 shall satisfy in
full any and all obligations and liabilities of the Bank arising as a result of
or in connection with the Employee's involuntary termination (other than for
Cause). Notwithstanding anything in this Agreement to the contrary, nothing in
this Agreement shall obligate the Bank to make any payments that are otherwise
prohibited by the laws and regulations applicable to national banks, including
without limitation 12 C.F.R. Part 359; provided, however, that the Employee
shall be entitled to payment to the extent and in the amount not otherwise
prohibited by 12 C.F.R. Part 359.
7. Notices. Notices under this Agreement shall be in writing and shall be
mailed by registered or certified mail, effective upon receipt, addressed as
follows:
(a) To the Bank:
The First National Bank of Ipswich
31 Market Street
Ipswich, Massachusetts 01938
Attention: Donald P. Gill, President
(b) To the Employee:
Jay S. Dunham
12 Wallace Circle
Londonderry, New Hampshire 03053
Either party may by notice in writing change the address to which notices
to it or him are to be addressed hereunder.
8. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
Agreement between the parties concerning its subject matter and may not be
changed except by a writing duly executed and delivered by the Bank and the
Employee in the same manner as the Agreement.
(b) Governing Law. This Agreement is governed by and shall be
construed in accordance with the laws of the Commonwealth of Massachusetts.
(c) Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Employee and by a duly authorized
representative of the Bank.
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(d) Enforceability. If any portion or provision of this Agreement
shall to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of the Agreement, or the application of such
portion or provisions 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.
IN WITNESS WHEREOF, the parties hereto have executed the within instrument
as a sealed document as of the date first above written.
ATTEST: THE FIRST NATIONAL BANK OF IPSWICH
/s/ Tammy Hartmann By: /s/ Donald P. Gill
- ---------------------- -----------------------------
Tammy Hartmann, Clerk Donald P. Gill, President
/s/ Jay S. Dunham
-----------------------------
Jay S. Dunham
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EXHIBIT A
TO
NON-COMPETITION, CONFIDENTIALITY
AND SEVERANCE AGREEMENT
BETWEEN
THE FIRST NATIONAL BANK OF IPSWICH
AND
JAY S. DUNHAM
1. Car. The Bank will provide Employee with a new mid-priced car.
3. Benefit Programs. Employee will participate in all benefit programs made
available to senior management of the Bank.