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EXHIBIT 10.13
AGREEMENT
THIS AGREEMENT dated as of November 30, 1997, is made by and between
The Chase Manhattan Corporation, a Delaware corporation, (the "Company"), and
<> (the "Executive").
WHEREAS the Company considers it essential to the best interests of its
shareholders to xxxxxx the continuous employment of key management personnel;
and
WHEREAS the Board has determined that appropriate steps should be taken
to reinforce and encourage the continued attention and dedication of key members
of the management of the Company and its subsidiaries, including the Executive,
to their assigned duties;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
1. Defined Terms. The definitions of capitalized terms used in this
Agreement are provided in Section 15 hereof.
2. Term of Agreement. This Agreement shall commence on January 1, 1998,
and shall continue in effect through the later of (a) December 31, 2000, or (b)
if a Change in Control occurs on or prior to December 31, 2000, the second
anniversary of the date on which such Change in Control occurs.
3. Company's Covenants Summarized. In order to induce the Executive to
remain in the employ of the Company and its subsidiaries and in consideration of
the Executive's covenants
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set forth in Section 5 hereof, the Company agrees, subject to the terms and
conditions hereof, to pay (or cause an employing subsidiary to pay) the
Executive the "Severance Payments" described in Section 4.01 hereof and the
other payments and benefits described herein in the event the Executive's
employment with the Company and its subsidiaries is terminated during the term
of this Agreement. No amount or benefit shall be payable under this Agreement
unless there shall have been a termination of the Executive's employment with
the Company and its subsidiaries, as described in Section 4.01 hereof. This
Agreement shall not be construed as creating an express or implied contract of
employment, and, except as otherwise agreed in writing between the Executive and
the Company, the Executive shall not have any right to be retained in the employ
of the Company or any of its subsidiaries.
4. Severance Payments.
4.01 Subject to Section 5.03 hereof, the Company shall pay (or cause an
employing subsidiary to pay) the Executive the amounts, and provide the
benefits, described in this Section 4.01 (the "Severance Payments") upon the
termination of the Executive's employment with the Company and its subsidiaries
during the term of this Agreement, unless such termination is by the Company or
a subsidiary for Cause, by reason of death or Disability, or by the Executive
without Good Reason.
(a) In lieu of any further salary payments to the Executive
for periods subsequent to the Date of Termination and in lieu of any
severance benefit otherwise payable to the Executive, the Company shall
pay to the Executive a
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series of substantially equal bi-weekly cash installment payments over
the course of 24 months totalling two times the sum of (i) the
Executive's Annual Base Salary in effect immediately prior to the
occurrence of the event or circumstance upon which the Notice of
Termination is based, and (ii) the average percentage annual bonus paid
or determined and payable to the Executive in respect of the three
preceding calendar years (expressed as a percentage of Annual Base
Salary in effect at the end of each of such years), multiplied by the
Executive's Annual Base Salary described in Section 4.01(a)(i) above.
The Executive may elect, prior to the receipt of any payments under
this Section 4.01(a), to receive the amount described in this Section
4.01(a) in the form of a lump-sum payment as soon as practicable
following the Date of Termination; provided, however, that if the
Executive makes such a lump-sum election, the Executive shall forego
any rights to receive the benefits described in Section 4.01(b) below.
(b) Except where the Executive has made a lump-sum election
pursuant to the terms of Section 4.01(a) above, for a 24 month period
after the Date of Termination, the Company shall provide the Executive
with life, accident and health insurance benefits substantially similar
to those which the Executive is receiving immediately prior to the
Notice of Termination (without giving effect to any reduction in such
benefits that constitutes Good Reason); provided, however, that the
Executive shall pay his or her portion of premiums or contributions
with respect to such insurance benefits at
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the active employee rate; and provided, further, that all general
changes to the Company's life, accident and health insurance benefit
programs shall apply to the Executive. (To receive health insurance
coverage under this Section 4.01(b), Executive must elect coverage in
accordance with the Consolidated Omnibus Budget and Reconciliation Act
of 1985, as amended.) Benefits otherwise receivable by the Executive
pursuant to this Section 4.01(b) shall be reduced to the extent
comparable benefits are actually received by or made available to the
Executive without cost during such period following the Executive's
termination of employment (and any such benefits actually received by
the Executive shall be reported to the Company by the Executive).
(c) If, as of the Date of Termination, the Executive has been
employed by the Company and its subsidiaries for five consecutive
years, such Executive shall be entitled, commencing immediately
following the 24 month period over which payments are made under
Section 4.01(a) (or, in the event the Executive has chosen to receive a
lump sum under Section 4.01(a), immediately following his or her Date
of Termination), to coverage under the Company's retiree medical and
life insurance programs and shall be treated as if all age and service
requirements had been satisfied under such programs. The Executive
shall be required to pay his or her portion of premiums or
contributions with respect to such programs and such premiums or
contributions payable by the Executive shall be computed as if the
Executive had the greater of (i) the Executive's actual years of
service or
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(ii) fifteen (15) years of service. The Executive shall be entitled to
the same level of benefits under the retiree medical and life insurance
programs as would be provided to senior executives of the Company
retiring as of the Executive's Date of Termination, as may be
applicable from time to time. Nothing in this Agreement shall have the
effect of reducing benefits under any retiree medical or life insurance
programs otherwise applicable to the Executive, provided that there
shall be no duplication of benefits. Benefits otherwise receivable by
the Executive pursuant to this Section 4.01(c) shall be reduced to the
extent comparable benefits are actually received by or made available
to the Executive without cost during such period following the
Executive's termination of employment (and any such benefits actually
received by the Executive shall be reported to the Company by the
Executive).
(d) Pursuant to the terms of The Chase Manhattan Corporation
1996 Long-Term Incentive Plan (or any successor plan, if applicable)
(the "LTIP"), the Compensation and Benefits Committee of the Board has
determined that, as of the Executive's Date of Termination, all awards
made under the LTIP shall vest, including but not limited to the
following, except as set forth below: (i) all stock options granted to
the Executive under the LTIP shall become exercisable and any
termination of the Executive's employment giving rise to Severance
Payments shall be treated as a job elimination for purposes of
exercising stock options under the LTIP, (ii) all restricted stock
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units granted to the Executive under the LTIP shall vest and (iii) the
restrictions on all restricted stock or other stock-based awards
granted to the Executive under the LTIP that would lapse in whole or in
part by reference to the Executive's period of employment shall lapse;
provided, however, that notwithstanding the foregoing, any portion of a
grant of stock options, restricted stock units, restricted stock or
other stock-based awards awarded to the Executive under the LTIP that
would vest, lapse or become exercisable solely by reference to
performance criteria, such as the attainment by Company stock of a
designated stock price target, shall remain in place, and will vest,
lapse or become exercisable only if such restrictions lapse generally
for other holders of such grant.
4.02 Notwithstanding any other provisions of this Agreement (but
subject to Section 5.03 hereof), in the event that any payment or benefit
received or to be received by the Executive in connection with the termination
of the Executive's employment (whether pursuant to the terms of this Agreement
or any other plan, arrangement or agreement with the Company or any of its
subsidiaries) (all such payments and benefits, including the Severance Payments,
being hereinafter called "Total Payments") would subject the Executive to an
Excise Tax, the provisions set forth in Appendix B hereof shall be followed.
4.03 No payments under this Section 4 shall be taken into account in
computing any contribution to or benefit under any qualified plan (as described
in Code Section 401(a)) or
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nonqualified plan maintained by the Company or any subsidiaries or affiliates
thereof.
5. The Executive's Covenants.
5.01 (a) Executive shall not, without the prior written consent of the
Company, use, divulge, disclose or make accessible to any other person, firm,
partnership, corporation or other entity any Confidential Information, except
(i) while employed by the Company or any subsidiary, in the business of and for
the benefit of the Company or any subsidiary, or (ii) when required to do so by
a court of competent jurisdiction, by any governmental agency having supervisory
authority over the business of the Company or any subsidiary, or by any
administrative body or legislative body (including a committee thereof) with
jurisdiction to order Executive to divulge, disclose or make accessible such
information.
(b) Executive and the Company shall not (except as required by law)
directly or indirectly make any statement or release any information, or
encourage others to make any statement or release any information that is
designed to embarrass or criticize the other (or their respective employees,
directors or shareholders).
5.02 For one year following the Date of Termination, Executive shall
not (without the prior written consent of the Company), either on his or her own
behalf or on behalf of any person, firm or company, directly or indirectly
solicit or offer employment to any person who is or was employed by the
Restricted Group.
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5.03 As a condition of receiving payments and benefits under this
Agreement, the Executive agrees to sign the form of release attached hereto as
Appendix A.
5.04 Executive and the Company agree that the covenants set forth in
this Section 5 are reasonable covenants under the circumstances, and further
agree that, if in the opinion of any court of competent jurisdiction, such
restraint is not reasonable in any respect, this Agreement shall be deemed
modified to the least degree necessary to make the Agreement reasonable and
fully enforceable. Executive agrees that any breach of the covenants contained
in this Section 5 would irreparably injure the Company. Accordingly, Executive
agrees that the Company may, in addition to pursuing any other remedies it may
have in law or in equity, cease making any payments otherwise required by this
Agreement and obtain an injunction against Executive from any court having
jurisdiction over the matter restraining any further violation of this Agreement
by Executive.
6. Termination Procedures.
6.01 Notice of Termination. During the term of this Agreement, any
purported termination of the Executive's employment with the Company and its
subsidiaries (other than by reason of death) shall be communicated by written
Notice of Termination from one party hereto to the other party hereto in
accordance with Section 9 hereof. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
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the facts and circumstances claimed to provide a basis for termination of the
Executive's employment with the Company and its subsidiaries under the provision
so indicated.
6.02 Date of Termination. "Date of Termination", with respect to any
purported termination of the Executive's employment during the term of this
Agreement, shall mean (a) if the Executive's employment is terminated for
Disability, thirty (30) days after Notice of Termination is given (provided that
the Executive shall not have returned to the full-time performance of the
Executive's duties during such thirty (30) day period), and (b) if the
Executive's employment is terminated for any other reason, the date specified in
the Notice of Termination (which, in the case of a termination by the Company or
a subsidiary, shall not be less than thirty (30) days (except in the case of a
termination for Cause) and, in the case of a termination by the Executive, shall
not be less than fifteen (15) days nor more than sixty (60) days, respectively,
from the date such Notice of Termination is given).
7. No Mitigation; Generally No Offset. The Company agrees that, if the
Executive's employment is terminated during the term of this Agreement, the
Executive is not required to seek other employment or to attempt in any way to
reduce any amounts payable to the Executive by the Company pursuant to Section
4. Further, the amount of any payment or benefit provided for in Section 4
(other than Section 4.01(b) or Section 4.01(c), to the extent provided therein)
shall not be reduced by any compensation earned by the Executive as the result
of employment by another employer, by retirement benefits, by offset against any
amount
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claimed to be owed by the Executive to the Company or any of its subsidiaries,
or otherwise.
8. Successors; Binding Agreement.
8.01 In addition to any obligations imposed by law upon any successor
to the Company, the Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive were to terminate the Executive's employment for Good
Reason during the term of this Agreement, except that, for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
8.02 This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive shall
die while any amount would still be payable to the Executive hereunder (other
than amounts which, by their terms, terminate upon the death of the Executive)
if the Executive had continued to live, all such amounts, unless otherwise
provided herein,
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shall be paid in accordance with the terms of this Agreement to the executors,
personal representatives or administrators of the Executive's estate.
9. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon actual receipt:
To the Company:
The Chase Manhattan Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
To the Executive:
<>
<>
<> <> <>
10. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar
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provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York without regard to conflicts of law principles. All
references to sections of the Exchange Act or the Code shall be deemed also to
refer to any successor provisions to such sections. Any payments provided for
hereunder shall be paid net of any applicable withholding required under
federal, state or local law and any additional withholding to which the
Executive has agreed. If the employment of the Executive has been terminated and
the Executive has commenced receiving Severance Payments, or if a Notice of
Termination has been given to the Executive, then the obligations of the Company
and the Executive under Sections 4, 5 and 6 shall survive the expiration of the
term of this Agreement.
11. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
12. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
13. Entire Agreement. The Agreement represents the entire agreement
between the Company and the Executive with
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respect to the subject matter addressed herein and supersedes any prior
agreement(s) relating to such subject matter between the Company and Executive.
14. Settlement of Disputes; Arbitration. All claims by the Executive
for benefits under this Agreement shall be directed to and determined by the
Company and shall be in writing. The Company shall respond in writing to any
such claim within sixty (60) days following receipt of such claim. Failure to
respond to such claim within such period shall be deemed a denial of such claim.
Any denial by the Company of a claim for benefits under this Agreement shall be
delivered to the Executive in writing and shall set forth the specific reasons
for the denial and the specific provisions of this Agreement relied upon. The
Company shall afford a reasonable opportunity to the Executive for a review of
the decision denying a claim and shall further allow the Executive to appeal in
writing to the Company a decision of the Company within sixty (60) days after
notification by the Company that the Executive's claim has been denied. The
Company shall respond in writing to any such appeal within sixty (60) days
following receipt of such appeal. Failure to respond to such appeal within such
period shall be deemed a denial of such appeal. Except with respect to matters
arising under Section 5.04 of this Agreement, any further dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in New York, New York in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
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15. Definitions. For purposes of this Agreement, the following terms
shall have the meanings indicated below:
(a) "Annual Base Salary" shall mean the Executive's regular basic
annual rate of compensation prior to any reduction therein under a salary
reduction agreement pursuant to Section 401(k) or Section 125 of the Code,
and shall not include (without limitation) cost of living allowances and
post allowances for foreign service, fees, retainers, reimbursements,
bonuses, incentive awards, prizes or similar payments.
(b) "Base Amount" shall have the meaning defined in Section 280G(b)(3)
of the Code.
(c) "Beneficial Owner" shall have the meaning defined in Rule 13d-3
under the Exchange Act.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Cause" for termination by the Company or a subsidiary of the
Executive's employment, during the term of this Agreement, shall mean:
(i) the willful and continued failure by the Executive to
substantially perform the Executive's duties with the Company, or a
subsidiary of the Company, as such duties may be defined from time to
time, or abide by the written policies of the Company or of the
Executive's primary employer (other than any such failure resulting
from the Executive's incapacity due to physical or mental illness or
any such actual or anticipated failure after the issuance of a Notice
of
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Termination for Good Reason by the Executive pursuant to Section
6.01) after a written demand for substantial performance is delivered
to the Executive by the Company, which demand specifically identifies
the manner in which the Company believes that the Executive has not
substantially performed the Executive's duties or has not abided by
written policies, or
(ii) the willful engaging by the Executive in conduct which is
demonstrably injurious to the Company or its subsidiaries, monetarily
or otherwise.
For purposes of clauses (i) and (ii) of this definition, no act, or failure to
act, on the Executive's part shall be deemed "willful" unless done, or omitted
to be done, by the Executive not in good faith and without reasonable belief
that the Executive's act, or failure to act, was in the best interest of the
Company and its subsidiaries.
(f) A "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following clauses shall have been
satisfied:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company or its affiliates) representing 25% or more
of the combined voting power of the Company's then outstanding
securities; or
(ii) during any period of twenty-four (24) consecutive months
(not including any period prior to
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the commencement of the term of this Agreement), individuals who at the
beginning of such period constitute the Board and any new director
(other than a director designated by a Person who has entered into an
agreement with the Company to effect a transaction described in clauses
(i), (iii) or (iv) of this Section 15(f)) whose election by the Board
or nomination for election by the Company's shareholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority of the Board; or
(iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, or a plan of
complete liquidation of the Company, other than (A) a merger,
consolidation or liquidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or a
subsidiary, at least 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding
immediately after such merger, consolidation or
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liquidation, or (B) a merger, consolidation or liquidation effected to
implement a recapitalization of the Company (or similar transaction) in
which no Person acquires more than 50% of the combined voting power of
the Company's then outstanding securities; or
(iv) the shareholders of the Company approve an agreement for
the sale or disposition by the Company (other than to a subsidiary) of
all or substantially all the Company's assets.
(g) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(h) "Company" shall mean The Chase Manhattan Corporation and any
successor to its business and/or assets which assumes and agrees to perform
this Agreement by operation of law or otherwise.
(i) "Confidential Information" shall mean non-public information
concerning the financial data, strategic business plans, product development
(or other proprietary product data), customer lists, marketing plans and
other non-public, proprietary and confidential information of the Restricted
Group or the customers of the Restricted Group, that, in any case, is not
otherwise available to the public (other than by Executive's breach of the
terms hereof).
(j) "Date of Termination" shall have the meaning stated in Section 6.02
hereof.
(k) "Disability" shall be deemed the reason for the termination by the
Company or a subsidiary of the Executive's employment, if, as a result of
the Executive's
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incapacity due to physical or mental illness, the Executive shall have
been absent from the full-time performance of the Executive's duties
with the Company and its subsidiaries for a period of six (6)
consecutive months, the Company shall have given the Executive a Notice
of Termination for Disability, and, within thirty (30) days after such
Notice of Termination is given, the Executive shall not have returned
to the full-time performance of the Executive's duties.
(l) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
(m) "Excise Tax" shall mean any excise tax imposed under
Section 4999 of the Code.
(n) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(o) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence (without the
Executive's express written consent) of any one of the following acts,
or failure to act, unless, in the case of any act or failure to act
described in clause (i), (ii), (iii), (iv), (v) or (vi) below, such act
or failure to act is corrected prior to the Date of Termination
specified in the Notice of Termination given in respect thereof:
(i) a substantial diminution, occurring on or after
the date of (or in contemplation of) a Change in Control, in
the overall importance of the Executive's role, as determined
by balancing (A) any increase or decrease in the scope of the
Executive's management
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responsibilities against (B) any increase or decrease in the
relative sizes of the businesses, activities or functions (or
portions thereof) for which the Executive has responsibility;
provided, however, that none of (I) a change in the
Executive's title or employer, (II) a change in the hierarchy
and (III) a change in the Executive's responsibilities from
line to staff or vice versa, either individually or
collectively shall, by itself or themselves, be considered
Good Reason;
(ii) a reduction in the Executive's Annual Base
Salary as in effect on the date hereof or as the same may be
increased from time to time;
(iii) the relocation of the principal place of the
Executive's employment to a location that is more than fifty
(50) miles from such principal place of employment immediately
prior to the commencement of the term of this Agreement
(unless such relocation is to the New York Metropolitan Area
or from one location outside of the United States to another
location outside the United States); provided, however, that
no relocation shall constitute Good Reason unless the
Executive gives notice to the Company objecting to such
relocation within sixty (60) days after such relocation;
(iv) the failure by the Company or a subsidiary to
pay to the Executive any portion of the Executive's current
compensation, or to pay to the Executive any portion of an
installment of deferred compensation
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under any deferred compensation program of the Company or a
subsidiary within thirty (30) days after the date such
compensation is due;
(v) the failure by the Company or a subsidiary to pay
the Executive by February 15 following any calendar year an
annual cash bonus for such calendar year that, in the
reasonable, good faith judgment of the Compensation and
Benefits Committee of the Board (or its designee), fairly
reflects the performance of the Executive, any unit or units
(or portions thereof) for which the Executive was responsible
and the Company as a whole during such calendar year;
provided, however, that the Executive may not claim that a
bonus equal to or greater than the highest annual bonus paid
to the Executive for any of the three calendar years
immediately preceding the commencement of the term of this
Agreement does not fairly reflect such performance; or
(vi) the failure by the Company or a subsidiary to
include the Executive in any other employee benefit or
compensation plan or arrangement on a basis reasonably
comparable to that generally available to other executives of
the Company and its subsidiaries having responsibilities of
equal importance to those of the Executive; provided, however,
that failure to include the Executive in a plan or arrangement
designed for a general category of positions that does not
include the Executive's position, as determined in good
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faith by the Compensation and Benefits Committee of the Board
(or its designee), shall not be considered Good Reason.
The Executive's right to terminate employment for Good Reason shall not be
affected by the Executive's incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder.
(p) "Gross-Up Payment" shall have the meaning given in Appendix B
hereof.
(q) "LTIP" shall have the meaning stated in Section 4.01(d) hereof.
(r) "Notice of Termination" shall have the meaning stated in Section
6.01 hereof.
(s) "Person" shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof;
however, a Person shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its subsidiaries, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(t) "Restricted Group" shall mean the Company, its subsidiaries and
their affiliates.
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(u) "Severance Payments" shall mean those payments described in Section
4.01 hereof. (v) "Total Payments" shall mean those payments described in
Section 4.02 hereof.
THE CHASE MANHATTAN CORPORATION
By____________________________
Xxxx X. Xxxxxxx
Director Human Resources
____________________________
Executive
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APPENDIX A
FORM OF RELEASE
For and in consideration of the payments and other benefits described
in the Agreement dated as of November 30, 1997, between The Chase Manhattan
Corporation (the "Company") and me (the "Agreement"), and for other good and
valuable consideration, I hereby release the Company, its divisions, affiliates,
subsidiaries, parents, branches, predecessors, successors, assigns, officers,
directors, trustees, employees, agents, shareholders, administrators,
representatives, attorneys, insurers and fiduciaries, past, present and future
(the "Released Parties") from any and all claims of any kind which I now have or
may have against the Released Parties, whether known or unknown to me, by reason
of facts which have occurred on or prior to the date that I have signed this
Release (except a claim for the payments described in the Agreement). Such
released claims include, without limitation, any and all claims under federal,
state or local laws pertaining to employment, including the Age Discrimination
in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. Section 2000e et seq., the Fair Labor Standards Act, as amended, 29
U.S.C. Section 201 et seq., the Americans with Disabilities Act, as amended, 42
U.S.C. Section 12101 et seq., the Reconstruction Era Civil Rights Act, as
amended, 42 U.S.C. Section 1981 et seq., the Rehabilitation Act of 1973, as
amended, 29 U.S.C. Section 701 et seq., the Family and Medical Leave Act of
1992, 29 U.S.C. Section 2601 et seq., the New York State Human Rights Law, N.Y.
Exec. Law, Section 296 et seq., the New York City Administrative Code, the New
Jersey State Law Against Discrimination, N.J. Stat., Section 10:5-1, et seq.,
and Connecticut General Statutes, Section 46a-60 et seq., and any and all state
or local laws regarding employment discrimination and/or federal, state or local
laws of any type or description regarding employment, including but not limited
to any claims arising from or derivative of my employment with the Company and
its subsidiaries, as well as any and all claims under state contract or tort
law.
I have read this Release carefully, acknowledge that I have been given
at least 21 days to consider all of its terms, and have been advised to consult
with an attorney and any other advisors of my choice prior to executing this
Release, and I fully understand that by signing below I am voluntarily giving up
any right which I may have to xxx or bring any other claims against the Released
Parties, including any rights and claims under the Age Discrimination in
Employment Act. I also understand that I have a period of 7 days after signing
this Release within which to revoke my agreement, and that neither the Company
nor any other person is obligated to make any payments or provide any other
benefits to me pursuant to the attached Agreement until 8 days have passed since
my signing of this Release without my signature having been revoked. Finally, I
have not been forced or pressured in any manner whatsoever to sign this Release,
and I agree to all of its terms voluntarily.
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Notwithstanding anything else herein to the contrary, this Release
shall not affect: the obligations of the Company set forth in the Agreement or
other obligations that, by their terms, are to be performed after the date
hereof (including, without limitation, obligations to me under any stock option,
stock award or incentive plans or agreements or obligations under any pension
plan or other benefit or deferred compensation plan, all of which shall remain
in effect in accordance with their terms); obligations to indemnify me
respecting acts or omissions in connection with my service as an officer or
employee of the Company and its subsidiaries; or any right I may have to obtain
contribution in the event of the entry of judgment against me as a result of any
act or failure to act for which both I and the Company are jointly responsible.
This Release, and the attached Agreement, are final and binding and may
not be changed or modified except in a writing signed by both parties.
-------------------------- ------------------------------
Date Executive
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APPENDIX B
EXCISE TAX PROCEDURES
1. In the event that the Executive becomes entitled to the Severance
Payments, if any of the Total Payments will be subject to the Excise Tax, and if
such Total Payments less the Excise Tax is less than the maximum amount of Total
Payments which would otherwise be payable to the Executive without the
imposition of an Excise Tax, then, to the extent necessary to eliminate the
imposition of an Excise Tax (and after taking into account any reduction in the
Total Payments provided by reason of Section 280G of the Code in such other
plan, arrangement or agreement), (a) the cash Severance Payments shall first be
reduced (if necessary, to zero), and (b) all other non-cash Severance Payments
shall next be reduced (if necessary, to zero). For purposes of this limitation:
(i) no portion of the Total Payments the receipt or enjoyment of which the
Executive shall have effectively waived in writing prior to the Date of
Termination shall be taken into account; (ii) no portion of the Total Payments
shall be taken into account which in the opinion of tax counsel selected by the
Company's independent auditors and reasonably acceptable to the Executive does
not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of
the Code, including by reason of Section 280G(b)(4)(A) of the Code; (iii) the
Severance Payments shall be reduced only to the extent necessary so that the
Total Payments (other than those referred to in clauses (i) or (ii)) in their
entirety constitute reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4)(B) of the Code or are otherwise not
subject to disallowance as deductions, in the opinion of the tax counsel
referred to in clause (ii); and (iv) the value of any non-cash benefit or any
deferred payment or benefit included in the Total Payments shall be determined
by the Company's independent auditors in accordance with the principles of
Sections 280G(d)(3) and 280G(d)(4) of the Code.
2. In the event that the Executive becomes entitled to the Severance
Payments, if any of the Total Payments will be subject to the Excise Tax, and if
such Total Payments less the Excise Tax thereon is greater than the maximum
amount of Total Payments which would otherwise be payable to the Executive
without the imposition of a Excise Tax, the Company shall pay to the Executive
an additional amount (the "Gross-Up Payment") such that the net amount retained
by the Executive, after deduction of any Excise Tax on the Total Payments and
any federal, state and local income tax and Excise Tax upon the payment provided
for by this Section 2, shall be equal to the Total Payments. For purposes of
determining whether any of the Total Payments will be subject to the Excise Tax
and the amount of such Excise Tax: (a) the Total Payments shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of the Code, and
all "excess parachute payments" within the meaning of Section 280G(b)(1) of the
Code shall be treated as subject to the Excise Tax, unless in the opinion of tax
counsel selected by the
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Company's independent auditors and reasonably acceptable to the Executive such
Total Payments (in whole or in part) do not constitute parachute payments,
including by reason of Section 280G(b)(4)(A) of the Code, or such excess
parachute payments (in whole or in part) represent reasonable compensation for
services actually rendered, within the meaning of Section 280G(b)(4)(B) of the
Code, in excess of the Base Amount allocable to such reasonable compensation, or
are otherwise not subject to the Excise Tax; and (b) the value of any non-cash
benefits or any deferred payment or benefit shall be determined by the Company's
independent auditors in accordance with the principles of Sections 280G(d)(3)
and 280G(d)(4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made and applicable state and local income
taxes at the highest marginal rate of taxation, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such state and
local taxes. In the event that the Excise Tax is subsequently determined to be
less than the amount taken into account hereunder at the time of termination of
the Executive's employment, the Executive shall repay to the Company, at the
time that the amount of such reduction in Excise Tax is finally determined, the
portion of the Gross-Up Payment attributable to such reduction (plus that
portion of the Gross-Up Payment attributable to the Excise Tax and federal,
state and local income tax imposed on the Gross-Up Payment being repaid by the
Executive to the extent that such repayment results in a reduction in Excise Tax
and/or a federal, state or local income tax deduction) plus interest on the
amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the
Code. In the event that the Excise Tax is determined to exceed the amount taken
into account hereunder at the time of the termination of the Executive's
employment (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Company shall
make an additional Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by the Executive with respect to such
excess) at the time that the amount of such excess is finally determined. The
Executive and the Company shall each reasonably cooperate with the other in
connection with any administrative or judicial proceedings concerning the
existence or amount of liability for Excise Tax with respect to the Severance
Payments.
3. The payments provided for in Sections 1 and 2 hereof shall be made
not later than the fifteenth day following the Date of Termination, provided,
however, that if the amounts of such payments, and the limitation on such
payments set forth in Section 1 hereof, cannot be finally determined on or
before such day, the Company shall pay to the Executive on such day an estimate,
as determined in good faith by the Company, of the minimum amount of such
payments to which the Executive is clearly entitled and shall pay the remainder
of such payments (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but
in no event later than the thirtieth (30th) day after the Date of
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Termination. In the event that the amount of the estimated payments exceeds the
amount subsequently determined to have been due, such excess shall constitute a
loan by the Company to the Executive, payable on the fifth (5th) business day
after demand by the Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code). At the time that payments are made under
this Section 3, the Company shall provide the Executive with a written statement
setting forth the manner in which such payments were calculated and the basis
for such calculations including, without limitation, any opinions or other
advice the Company has received from outside counsel, auditors or consultants
(and any such opinions or advice which are in writing shall be attached to the
statement).
4. If the benefits provided to the Executive under Section 4.01(b) or
4.01(c) of the Agreement shall result in a decrease, pursuant to Section 4.02 of
the Agreement, in the Severance Payments, and such Section 4.01(b) or 4.01(c)
benefits are thereafter reduced because of the receipt of comparable benefits,
the Company shall, at the time of such reduction, pay to the Executive the
lesser of (a) the amount of the decrease made in the Severance Payments pursuant
to Section 4.02 of the Agreement, or (b) the maximum amount which can be paid to
the Executive without being, or causing any other payment to be, nondeductible
by reason of Section 280G of the Code.
