CHANGE IN
CONTROL, CONFIDENTIALITY,
AND NONCOMPETITION AGREEMENT
This
Agreement is effective as of the 29th day of June, 2005 by and
between BAR HARBOR BANKSHARES , a Maine corporation with its
principal office at 82 Main Street, P.O. Box 400, Bar Harbor, ME
04609-0400 , and (Named Executive) of ( primary
residence ) , (the "Executive").
W I T N E S S
E T H:
WHEREAS, Bar
Harbor Bank & Trust is a wholly owned first tier banking
subsidiary of Bar Harbor Bankshares and Bar Harbor Trust Services
is a second tier non-depository trust company subsidiary of Bar
Harbor Bankshares; and
WHEREAS, the
Executive is an officer and employee of the Employer as defined
below; and
WHEREAS, the
Employer desires to enhance the ability of the Employer to retain
the services of the Executive and to reward the Executive for his
or her valuable, dedicated service to the Employer in the event of
his or her termination of employment in connection with a change in
control of the Employer as defined herein.
NOW,
THEREFORE, the parties hereto do hereby agree as
follows:
1.
Definitions
1.1.
Bank shall mean Bar Harbor Bank & Trust.
1.2.
Base Compensation shall mean the annual base salary payable
by the Employer to the Executive, and except as otherwise expressly
provided for in this Agreement, excluding any bonuses, incentive
compensation and other forms of additional compensation.
1.3
Cause shall be deemed to exist only in the event the
Executive is convicted by a court of competent jurisdiction of a
felony involving dishonesty or fraud on the part of the Executive
in his or her relationship with the Employer.
1.4.
Change in Control shall mean the occurrence of any one of
the following events:
(a) Any
person, including a group (as such term is used in Section 13(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) becomes the beneficial owner (as determined pursuant to Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of Bar Harbor Bankshares representing more than fifty
percent (50%) of the combined voting power of Bar Harbor
Bankshares' then outstanding securities, other than as a result of
an issuance of securities initiated by Bar Harbor Bankshares in the
ordinary course of its business; or
(b) Bar
Harbor Bankshares is party to a Business Combination (as
hereinafter defined) unless, following consummation of the Business
Combination, more than fifty percent (50%) of the outstanding
voting securities of the resulting entity are beneficially owned,
directly or indirectly, by the holders of Bar Harbor Bankshares'
outstanding voting securities immediately prior to the Business
Combination in substantially the same proportions as those existing
immediately prior to the Business Combination; or
(c) The
stockholders of Bar Harbor Bankshares approve a plan of complete
liquidation of Bar Harbor Bankshares or an agreement for the sale
or disposition by Bar Harbor Bankshares of all or substantially all
of Bar Harbor Bankshares' assets to another person or entity that
is not a wholly owned subsidiary of Bar Harbor
Bankshares.
For purposes
of this Section 1.4, a Business Combination means any cash tender
or exchange offer, merger or other business combination, sale of
stock, or sale of all or substantially all of the assets, or any
combination of the foregoing transactions.
For purposes
of this Section 1.4, a Change in Control shall exclude any internal
corporate change, reorganization or other such event, which
occurred prior to or may occur following the date of this
Agreement.
1.5.
Date of Termination shall mean:
(a) If the
Executive's employment is terminated for Disability, thirty (30)
days after Notice of Termination for Disability is given by the
Employer to the Executive and the Executive shall not have returned
to the performance of his duties on a full-time basis during such
thirty (30) day period;
(b) If the
Executive's employment is terminated by the Employer for Cause or
by the Executive for Good Reason, the date specified in the Notice
of Termination, but not earlier than the date on which such Notice
of Termination is given; and
(c) If the
Executive's employment is terminated or terminates for any other
reason, the date on which the Executive ceases to perform services
for the Employer as a common law employee.
1.6.
Disability shall mean a permanent and total disability (as
defined in the Employer's long term disability plan) which is
incurred by the Executive while he is employed by the Employer and
which makes the Executive eligible to receive a disability income
under the Employer's long term disability insurance plan. Such
disability shall be deemed to exist only if an application for
benefits is filed with the administrator of the Employer's long
term disability insurance plan by or on behalf of the Executive and
is approved by the administrator, each in the manner described in
such long term disability insurance plan.
1.7.
Employer shall mean Bar Harbor Bankshares, the Bank, and
Trust Services.
1.8.
Good Reason shall mean, unless the Executive consents to
such action, a reduction in the Executive's compensation that does
not apply generally to all senior executive officers of the
Employer, a material reduction in the duties of the Executive, or a
change in the principal worksite of the Executive to a location
that is more than fifty (50) road miles from his/her primary office
location.
1.9.
Holding Company shall mean Bar Harbor Bankshares, its
subsidiaries and affiliates.
1.10.
Notice of Termination shall mean the notice provided
pursuant to Section 3.
1.11.
Trust Services shall mean Bar Harbor Trust
Services.
2.
Severance Benefits .
In the event
that: (a) the Employer terminates the Executive's employment other
than as a result of normal retirement, Disability, death and other
than for Cause, or the Executive terminates his or her employment
for Good Reason; and (b) the Executive's termination of employment
occurs in anticipation of or within one year after a Change in
Control of Bar Harbor Bankshares, then the Employer shall pay the
Executive the severance benefits described in this Section 2. The
Executive's termination of employment shall be deemed to be in
anticipation of a Change in Control if it occurs within the twelve
(12) month period prior to the occurrence of the Change in
Control.
The severance
benefits described in this Section 2 shall equal the
following:
(a) The
Executive shall receive twelve equal installment payments beginning
the first of the month following their Date of Termination. The
total of all such installment payments shall equal one times the
Executive's Base Compensation, determined as of the Date of
Termination.
(b) The
Employer shall continue for a period of twelve consecutive months
following the Date of Termination pay to the Executive an amount
equal to the Employer’s contribution share of any medical,
health, dental and life insurance benefits which the Executive is
eligible to receive on the Date of Termination.
(c) In the
event of a Change of Control, all stock options granted but
unexercised under the Bar Harbor Bankshares and Subsidiaries
Incentive Stock Option Plan of 2000 or any other subsequent equity
plan shall become 100% vested immediately prior to any such Change
of Control. These grants will remain subject to all other terms and
conditions in the Bar Harbor Bankshares and Subsidiaries Incentive
Stock Option Plan of 2000 or any subsequent equity plan.
The Executive
shall not be required to mitigate the amount of any severance
benefits described in this Section 2 by seeking other
employment.
3. Notice
of Termination .
Any
termination of the Executive's employment by the Employer due to
Disability or for Cause, or by the Executive due to Good Reason,
shall be communicated by written Notice of Termination to the other
party. Notwithstanding the above, however, the Executive shall not
be entitled to give a Notice of Termination that the Executive is
terminating employment for Good Reason more than six (6) months
following the occurrence of the event alleged to constitute Good
Reason.
A Notice of
Termination must indicate the specific provisions in this Agreement
which are relied upon as the basis for the termination of the
Executive's employment, and must also set forth in reasonable
detail the facts and circumstances claimed to provide the basis for
such termination under the provisions so indicated.
4. Loss of
Severance Benefits .
If the
Employer shall terminate the Executive's employment due to
Disability or for Cause, or if the Executive shall terminate his or
her employment other than for Good Reason, or if the Executive
shall die, then the Executive shall have no right to receive any
severance benefits under this Agreement.
5. No
Other Benefits Payable .
(a) If the
Executive is entitled to receive the severance benefits described
in Section 2 of this Agreement, he shall not be entitled to
receive: (i) any severance benefits under the terms of any general
severance pay policy or plan of the Employer or any successor
company; or (ii) any other compensation, benefits or payments under
the terms of any other plan of, or agreement with, the
Employer.
(b)
Notwithstanding the above, the Executive shall be entitled to
receive any compensation, benefits or payments which are
specifically authorized by the terms of any plan of, or agreement
with, the Employer to be paid in addition to the severance benefits
described in Section 2 of this Agreement. Moreover, notwithstanding
the above, the Executive shall be entitled to receive, in addition
to the severance benefits described in Section 2 of this Agreement,
any compensation, benefits or payments which the Executive is
entitled to receive under; (i) any incentive compensation plan
maintained by the Employer which provides for payment to a
terminated employee of incentive compensation earned by the
employee prior to his or her termination of employment; or (ii) any
payroll plan or policy of the Employer
