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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
between
Mellon Bank, N.A.
and
W. Xxxxx Xxxxx
Effective as of July 25, 1993
(As Amended and Restated
Effective August 1, 1995)
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THIS AGREEMENT, made effective as of July 25, 1993 by and between
Mellon Bank, N.A. (the "Company"), a national banking association, and
W. Xxxxx Xxxxx (the "Executive"),
WITNESSETH THAT:
WHEREAS, the Executive, who has served as Vice Chairman of the Company
and of Mellon Bank Corporation (the "Holding Company"), effective as of
July 8, 1987, is willing to continue to serve in such capacity, and the
Company desires to retain the Executive in such capacity on the terms
and conditions herein set forth;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. EMPLOYMENT. The Company agrees to continue to employ the
Executive, and the Executive agrees to continue to be employed by the
Company, upon the terms and conditions hereinafter provided for a
period commencing as of July 25, 1993 and ending on July 31, 1996 (the
"Term"). The Executive hereby represents and warrants that he has the
legal capacity to execute and perform this Agreement, that it is a
valid and binding agreement, enforceable against him according to its
terms, and that its execution and performance by him does not violate
the terms of any existing agreement or understanding to which the
Executive is a party. In addition, the Executive represents and
warrants that he knows of no reason why he is not physically capable of
performing his obligations under this Agreement in accordance with its
terms.
2. POSITION AND DUTIES. During the Term, the Executive agrees to
serve as a Vice Chairman of the Company and the Holding Company,
reporting to the Chairman and Chief Executive Officer (the "CEO") of
the Company and the Holding Company and having such powers and duties
as may be conferred upon him by the CEO or by the
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Board of Directors of the Company (the "Board") or the Board of
Directors of the Holding Company. During the Term, and except for illness or
incapacity and reasonable vacation periods of no more than 4 weeks in any
calendar year (or such other period as shall be consistent with the Company's
policies for other key executives), the Executive shall devote all of his
business time, attention, skill and efforts exclusively to the business and
affairs of the Company and the Holding Company and their subsidiaries and
affiliates, shall not be engaged in any other business activity, and shall
perform and discharge well and faithfully the duties which may be assigned to
him from time to time by the Board of Directors of the Company or the Holding
Company; provided, however, that nothing in this Agreement shall preclude the
Executive from devoting time during reasonable periods required for:
(i) serving, in accordance with the Company's policies and with the
prior approval of the Board, as a director or member of a committee of
any company or organization involving no actual or potential conflict
of interest with the Company or the Holding Company or any of their
subsidiaries or affiliates;
(ii) delivering lectures and fulfilling speaking engagements;
(iii) engaging in charitable and community activities; and
(iv) investing his personal assets in businesses in which his
participation is solely that of an investor in such form or manner as
will not violate section 6 below or require any services on the part of
the Executive in the operation of the affairs of such business,
provided, however, that such activities do not materially affect or
interfere with the performance of the Executive's duties and
obligations to the Company or the Holding Company.
3. COMPENSATION. For all services rendered by the Executive in any
capacity required hereunder during the Term, including, without
limitation, services as an executive,
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officer, director, or member of any committee of the Company, the Holding
Company or any subsidiary, affiliate or division thereof, the Executive shall
be compensated as follows:
(a) BASE SALARY. The Company shall pay the Executive a fixed salary
of $400,000 per annum or such higher annual amount as is being paid
from time to time pursuant to the terms hereof ("Base Salary"). The
Base Salary shall be subject to such periodic review (which shall occur
as least annually) and such periodic increases as the Board shall deem
appropriate in accordance with the Company's customary procedures and
practices regarding the salaries of senior officers. Base Salary shall
be payable in accordance with the customary payroll practices of the
Company, but in no event less frequently than monthly. The employee
will receive a tax reimbursement payment at the end of each year which
will compensate the employee for any additional state and local taxes
imposed in excess of those that the employee would have borne had he
resided and worked exclusively in Pennsylvania. This payment will be
grossed up each year to cover federal, state, local, social security,
medicare and similar taxes thereon.
(b) BONUS. The Company shall pay the Executive such amounts, if any,
as may be due under the terms of the Mellon Bank Corporation Profit
Bonus Plan (or any successor plan), which currently provides for
payment of up to 100% of Base Salary for each calendar year, with such
payments of bonus to be made in accordance with the terms of such bonus
plan. For the Profit Bonus Plan award for 1994 (payable in 1995) and
for future years, it is understood that the Executive may receive some
portion of his Profit Bonus Plan award in the form of restricted stock
or phantom stock units, such awards to be made on the same terms as
apply to other members of the Office of the Chairman.
(c) ADDITIONAL BENEFITS. Except as modified by this Agreement, the
Executive shall be entitled to participate in all compensation or
employee benefit plans or programs,
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and to receive all benefits, perquisites and emoluments for which
any salaried employees are eligible under any plan or program, now
or hereafter established and maintained by the Company or the Holding
Company for senior officers, to the fullest extent permissible under
the general terms and provisions of such plans or programs and in
accordance with the provisions thereof, including group
hospitalization, health, dental care, senior executive life or
other life insurance, travel or accident insurance, disability plans,
tax-qualified pension, savings, thrift and profit-sharing plans,
deferred compensation plans, termination pay programs, sick-leave
plans, auto allowance or auto lease plans, and executive contingent
compensation plans, including, without limitation, capital
accumulation programs and stock purchase, restricted stock or
stock option plans.
Specifically, but not by way of limitation, the Executive shall be
eligible to receive payments under the special severance arrangements
(the "Severance Arrangements") and the special pension protection
arrangements adopted by resolution of the Board of Directors of the
Holding Company on June 15, 1987 for employees of the Holding Company
and its affiliates.
Notwithstanding the foregoing, nothing in this Agreement shall preclude
the amendment or termination of any such plan or program, provided that
such amendment or termination is applicable generally to all of the
senior officers of the Company or any subsidiary or affiliate.
(d) PERQUISITES. The Company will also furnish the Executive, without
cost to him except associated tax liability, with (i) membership in one
country club located within the Pittsburgh metropolitan area and one
business club located in Pittsburgh, (ii) an annual physical
examination of the Executive by a physician selected by the Executive
and (iii) personal financial planning and tax planning and preparation
services to be provided at the reasonable expense of the Company.
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4. BUSINESS EXPENSES. The Company shall pay or reimburse the
Executive for all reasonable travel or other expenses incurred by the
Executive (and his spouse where there is a legitimate business reason
for his spouse to accompany him) in connection with the performance of
his duties and obligations under this Agreement, subject to the
Executive's presentation of appropriate vouchers in accordance with
such procedures as the Company may from time to time establish for
senior officers and to preserve any deductions for Federal income
taxation purposes to which the Company may be entitled.
5. EFFECT OF TERMINATION OF EMPLOYMENT.
(a) CERTAIN TERMINATIONS. In the event the Executive's employment
hereunder terminates due to either Permanent Disability, a Without
Cause Termination or a Constructive Discharge, the Company, shall as
liquidated damages or severance pay, or both, continue, subject to the
provisions of Section 6 below, to pay the Executive's Base Salary as in
effect at the time of such termination until the expiration of the Term
and the one-year period beginning with the end of the Term (the
"Severance Period"), provided, however, that in the case of Permanent
Disability, such payments shall be offset by any amounts otherwise paid
to the Executive under the Company's disability plan generally
available to other employees, and, provided, further, that in the case
of a change in control (as defined for purposes of the Severance
Arrangements) such payments shall be offset by any amounts otherwise
paid to the Executive under the Severance Arrangements. In addition,
earned but unpaid Base Salary as of the date of termination of
employment shall be payable in full and any bonus award the Executive
would have received had he been employed throughout the bonus year,
including any restricted stock or phantom stock units payable in lieu
of any portion of the Profit Bonus Plan award, shall be payable on a
pro-rated basis for the year in which such termination of employment
occurs only. The Executive shall continue to participate through the
end of the Severance Period in all compensation or employee benefit
programs maintained by the Company or the Holding Company in which he
was participating
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on the date of termination, including group hospitalization,
health, dental care, life, senior executive life or other insurance,
travel or accident insurance, disability plans, tax-qualified pension,
savings, thrift and profit-sharing plans and deferred compensation
plans, all in accordance with the terms and conditions of the
applicable employee benefit plans in effect from time to time as
applied to employees, and outstanding stock options and shares of
restricted stock shall continue to vest and be exercisable, as
permitted by the applicable plan. The perquisites set forth in
Paragraph 3(d)(i) and (iii) shall continue through the first
anniversary of the Executive's termination of employment. The
Executive shall have no duty or obligation to seek other employment
through the end of the Severance Period.
(b) OTHER TERMINATIONS. In the event the Executive's employment
hereunder terminates due to a Termination for Cause or the
Executive terminates employment with the Company for reasons other than
a Constructive Discharge, Permanent Disability or retirement pursuant
to the Mellon Bank Retirement Plan, or any successor plan, earned but
unpaid Base Salary as of the date of termination of employment shall be
payable in full. However, no other payments shall be made, or benefits
provided, by the Company under this Agreement except for restricted
shares of stock and stock options to the extent already vested, and
except for benefits that have already become vested under the terms of
employee benefit programs maintained by the Company or its affiliates
for its employees generally.
(c) DEFINITIONS. For purposes of this Agreement, the following terms
have the following meanings:
(i) The term "Termination for Cause" means, to the maximum
extent permitted by applicable law, a termination of the
Executive's employment by the Company by a vote of a majority of
the Board members then in office, because the Executive has (a)
been convicted of a criminal offense covered by
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Section 19 of the Federal Deposit Insurance Act, 12 U.S.C. Section
1829, or (b) has entered a plea of nolo contendere thereto, or
(c) the Executive has breached or failed to perform his duties
hereunder, and such breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness (within the
meaning of Section 1713(a) of the Pennsylvania Business
Corporation Law, as amended), or a final determination has been
reached that the Executive has violated the representations made
in Section 1 above, or the provisions of Section 6, below;
provided, however, that the Board has given the Executive advance
notice of such Termination for Cause including the reasons
therefor, together with a reasonable opportunity for the Executive
to appear with counsel before the Board and to reply to such
notice.
(ii) The term "Constructive Discharge" means a termination of
the Executive's employment by the Executive due to a failure of
the Company or its successors to fulfill the obligations under
this Agreement in any material respect, including (a) any failure
to elect or reelect or to appoint or reappoint the Executive to
the offices of Vice Chairman of the Company and the Holding
Company or as a member of their boards of directors, (b) any other
material change by the Company and the Holding Company in the
functions, duties or responsibilities of the Executive's position
with the Company and the Holding Company which would reduce the
ranking or level, dignity, responsibility, importance or scope of
such position, (c) any imposition on the Executive of a
requirement to be permanently based at a location more than fifty
miles from the principal office of the Company without the consent
of the Executive, or (d) any reduction in the Executive's salary
below the amount then provided for under Section 3(a) hereof.
(iii) The term "Without Cause Termination" means a termination of
the Executive's employment by the Company upon 30 days notice
to the
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Executive, other than due to Permanent Disability or
expiration of the Term and other than a Termination for Cause.
(iv) The term "Permanent Disability" means the inability of
the Executive to work for a period of six full calendar months
during any eight consecutive calendar months due to illness or
injury of a physical or mental nature, supported by the completion
by the Executive's attending physician of a medical certification
form outlining the disability and treatment.
(d) For purposes of calculating benefits accruing to the Executive
under any severance program now or hereafter in effect for employees of
the Holding Company or any of its subsidiaries, the Executive has been
granted and has been vested in a credit for 8 years of past service to
the Company, its subsidiaries and affiliates, such credit to be added
to any years of actual service that the Executive shall have accrued
prior to severance. In addition, under Paragraph 7(a)(ii) of this
Agreement, on and after August 1, 1994 the Executive may earn and
become vested in up to an additional 5 years of service for the purpose
of calculating severance benefits.
6. OTHER DUTIES OF EXECUTIVE DURING AND AFTER TERM.
(a) CONFIDENTIAL INFORMATION. The Executive recognizes and
acknowledges that all information pertaining to the affairs, business,
clients or customers of the Holding Company or any of its subsidiaries
or affiliates (any or all of such entities being hereinafter referred
to as the "Business"), as such information may exist from time to time,
other than information that the Holding Company or any of its
subsidiaries or affiliates has previously made publicly available, is
confidential information and is a unique and valuable asset of the
Business, access to and knowledge of which are essential to the
performance of the Executive's duties under this Agreement. The
Executive shall not, through the end of the Severance Period, except to
the
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extent reasonably necessary in the performance of his duties under
this Agreement, divulge to any person, firm, association, corporation,
or governmental agency, any information concerning the affairs,
business, clients or customers of the Business (except such information
as is required by law to be divulged to a government agency or pursuant
to lawful process), or make use of any such information for his own
purposes or for the benefit of any person, firm, association or
corporation (except the Business) and shall use his reasonable best
efforts to prevent the disclosure of any such information by others.
All records, memoranda, letters, books, papers, reports, accountings,
experience or other data, and other records and documents relating to
the Business, whether made by the Executive or otherwise coming into
his possession, are confidential information and are, shall be, and
shall remain the property of the Business. No copies thereof shall be
made which are not retained by the Business, and the Executive agrees,
on termination of his employment or on demand of the Holding Company to
deliver the same to the Holding Company.
(b) NON-COMPETE. Through the end of the Severance Period, the
Executive shall not without express prior written approval of the CEO,
directly or indirectly, own or hold any proprietary interest in, or be
employed by or receive remuneration from, any corporation, partnership,
sole proprietorship or other entity engaged in competition with the
Company, the Holding Company or any of their affiliates (a
"Competitor"), other than severance-type benefits from entities
constituting prior employers of the Executive. The Executive also
agrees that he will not solicit for the account of any Competitor, any
customer or client of the Company, the Holding Company or their
affiliates, or, in the event of the Executive's termination of
employment, any entity or individual that was such a customer or client
during the 12 month period immediately preceding the Executive's
termination of employment. The executive also agrees not to act on
behalf of any Competitor to interfere with the relationship between the
Company, the Holding Company or their affiliates and their employees.
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For purposes of the preceding paragraph, (i) the term "proprietary
interest" means direct or indirect legal or equitable ownership,
whether through stockholdings or otherwise, of an equity interest in a
business, firm or entity, other than ownership through mutual funds or
other similar diversified vehicles; provided, however, that the
Executive shall not be required to divest any previously acquired
equity interest and (ii) an entity shall be considered to be "engaged
in competition" if such entity is a commercial bank located in
Pittsburgh, Pennsylvania or any other major money center commercial
bank or major regional commercial bank, in either case, with principal
offices in any state east of the Mississippi River. Notwithstanding
the foregoing, it is understood that the Executive is subject to all
Policies and Procedures of the Company and the Holding Company
regarding investment in securities of competitors.
(c) REMEDIES. The Company's obligation to make payments, deliver
shares of Stock or provide for any benefits under this Agreement
(except to the extent vested) shall cease upon a violation of the
preceding provisions of this Section; provided, however, that in the
event of a violation of the preceding provisions of this section
following a "change in control" (as defined for purposes of the
severance arrangements for employees of the Holding Company adopted by
resolution of the Board of Directors of the Holding Company on June 15,
1987) the Company's obligations to make payments, deliver shares of
stock or provide for any benefit under this Agreement shall cease only
to the extent of the Executive's remuneration from subsequent
employers, or income from self-employment which is subject to FICA
taxation, during the period such severance compensation is to be paid
by the Company. The Executive's agreement as set forth in this Section
6 shall survive the Executive's termination of employment with the
Company.
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7. RETIREMENT.
(a) PAST SERVICE CREDIT.
(i) For purposes of calculating benefits accruing to the Executive
under the Mellon Bank Retirement Plan or any successor plan (the
"Retirement Plan") and all related excess benefit and other benefit
restoration plans maintained by the Company, the Executive has been
granted a credit for 8 years of past service to the Company, such
credit to be added to any years of actual service with the Company and
the Holding Company or their subsidiaries and affiliates that the
Executive shall have accrued upon his retirement. The Executive has
been and shall be considered to be fully vested in such additional
years of service for all purposes under the Retirement Plan and all
related excess benefit and other benefit restoration plans maintained
by the Company.
(ii) The Executive may also earn and be granted upon his retirement an
additional credit for up to 5 years of service. Such service credit
shall be added to the above past service credit and to the years of
service with the Company and the Holding Company and their subsidiaries
and affiliates that the Executive shall have accrued upon his
retirement for the purposes of calculating benefits under the
Retirement Plan and all related excess benefit and other benefit
restoration plans maintained by the Company. The service credit
granted to the Executive under this Paragraph (ii) shall equal 5 times
a fraction whose numerator equals (A) and whose denominator equals (B),
where:
(A) is the Executive's actual months of service with the
Company and the Holding Company and their subsidiaries and
affiliates after August 1, 1994 through the date of his
retirement (but not to exceed 63 months); and
(B) is 63.
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This additional service credit will continue to be earned after the end
of the Term; provided, that the Executive continues to be employed by
the Company or Holding Company or their subsidiaries or affiliates.
(b) CALCULATION. For purposes of calculating the Executive's final
average compensation under the Retirement Plan, notwithstanding
provisions to the contrary in the Retirement Plan, the Executive's
compensation in any year shall be deemed to include any bonus awarded
to the Executive for that year under the Profit Bonus Plan, or any
successor plan, including the cash value of any restricted stock or
phantom stock units payable in lieu of any portion of the Profit Bonus
Plan award. For purposes of calculating final average compensation,
the cash value of any portion of bonus payable as either restricted
stock or phantom stock units shall be determined on the date such
restricted stock or phantom stock units are granted.
(c) SOURCE OF FUNDS. Any payments hereunder in excess of those which
would have been received under the Retirement Plan without regard to
this Section 7, shall be paid out of the general assets of the Company
and not from the assets of the Retirement Plan.
The amount of the monthly supplemental retirement benefit payable to
the Executive hereunder shall be reduced by the total monthly amount of
benefits provided to or in respect of the Executive under all
tax-qualified retirement plans and related excess benefit and other
benefit restoration plans maintained by the Company or the Holding
Company for the Executive, including the Mellon Bank Benefit
Restoration Plan and the Mellon Bank IRC Section 401(a)(17) Plan (the
"Supplemental Plans") but not including the Holding Company's
Retirement Savings Plan, a section 401(k) plan.
The Executive owns interests in life insurance policies (the
"Policies") as a participant in the Mellon Bank Senior Executive Life
Insurance Plan. The
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supplemental retirement benefit payable to the Executive hereunder
shall be further reduced by the Executive's interest in the cash value
of the Policies. This reduction shall be calculated in the same
manner as under the Supplemental Plans.
The Executive shall elect the form of payment of his supplemental
retirement benefit in the same manner and subject to the same
provisions (including timing requirements and all reductions and/or
penalties for late elections) as provided under the Supplemental Plans.
The Executive may elect any optional form of payment permitted under
the Supplemental Plans, including a timely lump-sum election which
avoids constructive receipt.
In the event that the Executive elects a form of payment of his
supplemental retirement benefits which provides for payments to
continue after his death and dies without having received all payments
of supplemental retirement benefits that may be payable hereunder, then
the unpaid balance of such benefits shall be paid in accordance with
the form of payment elected by the Executive. Any such remaining
payments shall be made to the Executive's beneficiary provided under
the Supplemental Plans, subject to any contrary written instructions
from the Executive designating a different beneficiary for such
payments.
8. LIMITATION AS TO AMOUNTS PAYABLE.
(a) SECTION 280G LIMITATION. In the event that any payment, coverage
or benefit provided under this Agreement would, in the opinion of
counsel for the Company, not be deemed to be deductible in whole or in
part in the calculation of the Federal income tax of the Company, or
any other person making such payment or providing such coverage or
benefit, by reason of Section 280G of the Code, the aggregate payments,
coverages or benefits provided hereunder shall be reduced to the "safe
harbor" level under Section 280G so that no portion of such amount
which is paid to the Executive is not deductible by reason of Section
280G of the Code. Executive
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may determine which payments, coverages or benefits will be
reduced in order to satisfy the "safe harbor" level under Section
280G. Furthermore, the Company shall hold such portions not paid to
the Executive in escrow pending a final determination of whether such
amounts would be deductible if paid to the Executive, and the Company
shall use its best efforts to seek a ruling from the Internal Revenue
Service that any portion of such payments, coverages or benefits not
paid to the Executive pursuant to this Section 8(a) would continue to
be deductible if paid to the Executive and the Company shall pay to the
Executive any portion of such amounts for which such a ruling is
received. In the event the IRS will not rule on such matter, the
Company shall pay to the Executive such amounts maintained in escrow
pursuant to this Section 8(a) as shall be determined at some point in
time by a counsel, selected by the Company and the Executive, is likely
to be deductible if paid to the Executive or shall be forfeited by the
Executive in the event of a final determination by the IRS that such
amounts are not deductible. For purposes of this paragraph, the value
of any non-cash benefit or coverage or any deferred to contingent
payment or benefit shall be determined by the independent auditors of
the Company in accordance with the principles of Section 280G of the
Code.
(b) OFFSET. Within 90 days following any termination of his
employment which constitutes a Without Cause Termination or
Constructive Discharge (as such terms are defined in Section 5(c)),
Executive may elect, by written notice to Employer, to have the
provisions of this Section 8(b) apply to reduce the aggregate payments,
coverages and benefits provided under this Agreement during the
remainder of the Term of this Agreement following his termination of
employment (hereafter the "Applicable Period"). If Executive does not
make such election, this Section 8(b) shall have no application or
effect under this Agreement.
If Executive elects to have this Section 8(b) apply, the aggregate
payments, coverages and benefits provided to Executive under this
Agreement during the
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Applicable Period following his termination of employment shall
be reduced by "mitigation" (as defined below) to comply with
Regulations under Section 280G of the Code, including, in particular,
Question and Answer 42(b). "Mitigation" shall mean that payments which
are made and benefits which are provided by the Employer during the
Applicable Period after termination of Executive's employment and which
are attributable to the Applicable Period and not to any other period
will be reduced by all earned income (within the meaning of Section
911(d)(2)(A) of the Code) received by Executive from persons or
entities other than the Employer or from self-employment during the
Applicable Period.
Not less frequently than annually (by December 31 of each year) during
the Applicable Period, Executive shall account to the Employer with
respect to all payments and benefits received by Executive from other
employment or self-employment during the Applicable Period which are
required by reason of his duty of "mitigation" hereunder to be offset
against payments or benefits received by Executive from the Employer
during the Applicable Period. During the Applicable Period, if the
Employer has paid amounts in excess of those to which Executive was
entitled (after giving effect to the offsets provided above), Executive
shall reimburse the Employer for such excess by December 31 of such
year.
If Executive receives earned income from other employment or
self-employment during only a portion, but not all, of the Applicable
Period, only payments which are made and benefits which are provided by
the Employer that are attributable to the portion of the Applicable
Period during which Executive receives earned income from other
employment or self-employment shall be subject to reduction and offset
as provided above.
If Executive elects to have this Section 8(b) apply, Executive may
elect, at any time, to be subject to a greater (but no lesser) duty of
"mitigation" than otherwise provided above in this Section 8(b), if
counsel selected by Executive determines
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that such greater duty of "mitigation" is advisable in order to
comply with Regulations under Section 280G.
9. WITHHOLDING TAXES. The Company may directly or indirectly withhold
from any payments made under this Agreement all Federal, state, city or
other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
10. CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this
Agreement shall preclude the Company from consolidating or merging into
or with, or transferring all or substantially all of its assets to,
another corporation which assumes this Agreement and all obligations
and undertakings of the Company hereunder. Upon such a consolidation,
merger or transfer of assets and assumption, the term "Company" as used
herein shall mean such other corporation and this Agreement shall
continue in full force and effect.
11. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be given in writing and shall be
deemed to have been duly given if delivered or mailed, postage prepaid,
by same day or overnight mail as follows:
(a) To the Company:
Head of Human Resources Department
Mellon Bank, N.A.
One Mellon Bank Center, Room 720
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
(b) To the Executive:
W. Xxxxx Xxxxx
Mellon Bank, N.A.
One Mellon Bank Center, Room 4700
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
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or to such other address as either party shall have previously
specified in writing to the other.
12. NO ATTACHMENT. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge,
or hypothecation or to execution, attachment, levy, or similar process
or assignment by operation of law, and any attempt voluntary or
involuntary, to effect any such action shall be null, void and of no
effect; provided, however, that nothing in this Section 12 shall
preclude the assumption of such rights by executors, administrators, or
other legal representatives of the Executive or his estate and their
assigning any rights hereunder to the person or persons entitled
thereto.
13. SOURCE OF PAYMENTS. All payments provided for under this
agreement shall be paid in cash from the general funds of the Company.
The Company shall not be required to establish a special or separate
fund or other segregation of assets to assure such payments, and, if
the Company shall make any investments to aid it in meeting its
obligations hereunder, the Executive shall have no right, title or
interest whatever in or to any such investments except as may otherwise
be expressly provided in a separate written instrument relating to such
investments. Nothing contained in this agreement, and no action taken
pursuant to its provisions, shall create or be construed to create a
trust of any kind, or a fiduciary relationship, between the Company and
the Executive or any other person. To the extent that any person
acquires a right to receive payments from the Company hereunder, such
right, without prejudice to rights which employees may have, shall be
no greater than the right of an unsecured creditor of the Company.
14. BINDING AGREEMENT. This Agreement shall be binding upon, and
shall inure to the benefit of, the Executive and the Company and, as
permitted by this Agreement, their respective successors, assigns,
heirs, beneficiaries and representatives.
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15. GOVERNING LAW. The validity, interpretation, performance, and
enforcement of this Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when executed shall be deemed to be an
original and all of which together shall be deemed to be one and the
same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto
duly authorized, and the Executive has signed this Agreement, all as of
the first date above written.
ATTEST: Mellon Bank, N.A.
Xxxxxx Xxxx Oresti By: D. Xxxxxxx Xxxxx
--------------------- ---------------------------
Xxxxxx Xxxx Xxxxxx X. Xxxxxxx Xxxxx
Secretary Head of the Human
Resources Department
W. Xxxxx Xxxxx
---------------------------
W. Xxxxx Xxxxx
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