Exhibit 10.37
Key Executive
Change-in-Control
Severance Agreement
_____________________
Pacific Century Financial Corporation
Contents
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Page
Article 1. Establishment and Purpose ............................. 1
Article 2. Definitions and Construction .......................... 2
Article 3. Severance Benefits .................................... 4
Article 4. Just Cause ............................................ 6
Article 5. Form and Timing of Severance Benefits ................. 7
Article 6. Parachute Payments .................................... 7
Article 7. Other Rights and Benefits Not Affected ................ 7
Article 8. Successors ............................................ 8
Article 9. Administration ........................................ 8
Article 10. Legal Fees and Arbitration ............................ 9
Pacific Century Financial Corporation
Key Executive
Change-in-Control Severance Agreement
Article 1. Establishment and Purpose
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1.1 Effective Date. This Executive Change-in-Control Severance Agreement
(the "Agreement) is made and entered into pursuant to Pacific Century Financial
Corporation's Key Executive Severance Plan (the "Plan"), and is effective as of
this 25th day of January, 2002 (the "Effective Date"), by and between Pacific
Century Financial Corporation ("PCFC"), a Hawaii corporation, and Xxxxx X.
Xxxxxx, an executive (the "Executive") of PCFC and its subsidiary, Bank of
Hawaii (the "Bank"). This Agreement shall supersede and replace any prior
severance agreement entered into between PCFC and the Executive.
1.2 Term of the Agreement. The Agreement shall commence as of the Effective
Date written above, and shall continue until the Board of Directors of PCFC (the
"Board") determines, in good faith and in its sole discretion, that the
Executive is no longer to be included in the Plan and so notifies in writing the
Executive during the term of this Agreement of such determination.
Provided, however, in the event that a Change in Control of PCFC, as
defined in Section 2.1 herein, occurs during the term of this Agreement, this
Agreement shall remain irrevocably in effect for the greater of twenty-four (24)
months from the date of such Change in Control, or until all benefits have been
paid to the Executive hereunder.
Further, in the event that the Board has knowledge that a third party
has taken steps reasonably calculated to effect a Change in Control of PCFC,
including, but not limited to, the commencement of a tender offer for the voting
stock of PCFC, or the circulation of a proxy to PCFC's shareholders, then this
Agreement shall remain irrevocably in effect until the Board, in good faith,
determines that such third party has fully abandoned or terminated its effort to
effect a Change in Control of PCFC.
1.3 Purpose of the Agreement. The purpose of this Agreement pursuant to the
Plan, is to advance the interests of PCFC and the Bank by assuring that PCFC and
the Bank will have the continued employment and dedication of the Executive and
the availability of his advice and counsel in the event that an acquisition or
Change in Control of PCFC occurs. This Agreement shall also assure the Executive
of equitable treatment during the period of uncertainty that surrounds an
acquisition or Change in Control, and allow the Executive to act at all times in
the best interests of PCFC and its shareholders.
1.4 Contractual Right to Benefits. This Agreement establishes and vests in
the Executive a contractual right to the benefits which he or she is entitled
hereunder, enforceable by the Executive against PCFC. However, nothing herein
shall require PCFC to segregate, earmark, or otherwise set aside any funds or
other assets to provide for any payments hereunder.
This Agreement shall be considered an unfunded agreement to provide
benefits to a select group of management or highly compensated employees, and is
therefore intended to be a "top-hat" plan exempt from the requirements of the
provisions of Parts 2, 3, and 4 of Title I of ERISA.
Article 2. Definitions and Construction
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2.1 Definitions. Whenever used in the Agreement, the following terms shall
have the meanings set forth below and, when the meaning is intended, the initial
letter of the word is capitalized.
(a) "Base Salary" means the annualized salary at the beginning of
each Year, which includes all regular basic wages, before
reduction for any amounts deferred on a tax-qualified or
nonqualified basis, payable in cash to an Executive for services
rendered during the Year. Base Salary shall exclude bonuses,
incentive compensation, special fees or awards, commissions,
allowances, or any other form of premium or incentive pay, or
amounts designated by PCFC as payment toward or reimbursement of
expenses.
(b) "Beneficial Owner" shall have the meaning ascribed to such term
in Rule 13d-3 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(c) "Beneficiary" with respect to an Executive means the person or
entities designated or deemed designated by an Executive pursuant
to Section 8.2 herein.
(d) "Board" means the Board of Directors of PCFC.
(e) "Change in Control" of PCFC means any one or more of the
following occurrences:
(i) Any Person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, becomes the
beneficial owner of shares of PCFC having 25 percent or more
of the total number of votes that may be cast for the
election of Directors of PCFC; or
(ii) As the result of, or in connection with, any cash tender or
exchange offer, merger or other business combination, sale
of assets or contested election, or any combination of the
foregoing transactions, the person who were Directors of
PCFC before the
transaction shall cease to constitute a majority of the
Board of Directors of PCFC or any successor to PCFC.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "PCFC" means Pacific Century Financial Corporation, a Hawaii
corporation, or any successor thereto that adopts the Agreement,
as provided in Section 8.1 herein.
(h) "Committee" means the Compensation Committee of the Board of
Directors of PCFC or any other committee appointed by the Board
to administer this Agreement.
(i) "Disability" means a physical or mental condition which renders
an Executive unable to discharge his or her normal work
responsibility with PCFC or the Bank and which, in the opinion of
a licensed physician selected by the Executive, subject to
reasonable approval by the Committee based upon sufficient
medical evidence, can be reasonably expected to continue for a
period of at least one full calendar year. If an Executive fails
to select a physician with ten (10) business days of a written
request made by PCFC, then PCFC may select a physician for
purposes of this paragraph.
(j) "Effective Date" means the date the Agreement is approved by the
Board, or such other date as the Board shall designate in its
resolution approving the Agreement, and as provided in Section
1.1 herein.
(k) "Effective Date of Termination" means the date on which a
voluntary employment termination or involuntary employment
termination other than for Just Cause occurs within twenty-four
(24) months of a Change in Control which triggers Severance
Benefits hereunder.
(l) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor act thereto.
(m) "Expiration Date" means the date the Agreement expires, as
provided in Section 1.2 herein.
(n) "Just Cause" means a termination of an Executive's employment by
PCFC for which no Severance Benefits are payable hereunder, as
provided in Article 4 herein.
(o) "Normal Retirement Date" shall mean the date the Executive
reaches 65 years of age.
(p) "Person" shall have the meaning ascribed to such terms in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof, including a "group" as defined in Section 13(d).
(q) "Plan" means the Pacific Century Financial Corporation Key
Executive Severance Plan, adopted April 27, 1983.
(r) "Severance Benefit" means the payment of severance compensation
as provided in Article 3 herein.
(s) "Year" means the consecutive 12-month period beginning each
January 1 and ending December 31.
2.2 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine, the plural shall
include the singular, and the singular shall include the plural.
2.3 Severability. In the event any provision of the Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Agreement, and the Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included.
2.4 Modification. No express provisions of this Agreement may be modified,
waived, or discharged unless such modification, waiver, or discharge is agreed
to by the Executive in writing and approved by the Compensation Committee of the
Board of Directors.
2.5 Applicable Law. To the extent not preempted by the laws of the United
States, the laws of the State of Hawaii shall be the controlling law in all
matters relating to the Agreement.
Article 3. Severance Benefits
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3.1 Right to Severance Benefits. The Executive shall be entitled to
receive from PCFC Severance Benefits as described in Section 3.2 herein, if
there has been a Change in Control of PCFC, as defined in Section 2.1(e) herein,
and if, within twenty-four (24) months thereafter, the Executive voluntarily
terminates employment or is involuntarily terminated without Just Cause with
PCFC. An Executive shall not be entitled to receive Severance Benefits if the
Executive's employment with PCFC or Bank of Hawaii ends due to an involuntary
termination by PCFC for Just Cause, as provided under Article 4 herein.
3.2 Description of Severance Benefits. In the event that an Executive
becomes entitled to receive Severance Benefits, as provided in Section 3.1
herein, PCFC shall pay to the Executive and provide the Executive with the
following:
(a) An amount equal to three (3) times the Executive's highest annual
Base
Salary earned (i) at any time during the three (3) complete
fiscal years immediately preceding the Effective Date of
Termination, or (ii) if the Executive was not employed during
such time period, at any time thereafter; and
(b) An amount equal to three (3) times the Executive's highest annual
bonus earned under the One-Year Incentive Plan during the three
(3) complete fiscal years prior to the Effective Date of
Termination, or, if shorter, over the Executive's entire period
of employment. However, if the Executive's period of employment
is less than one year, the bonus shall be considered zero (0);
and
(c) An amount equal to three (3) times the Executive's highest annual
incentive compensation earned under the Pacific Century Financial
Corporation Profit Sharing Plan, the Long-Term Incentive Plan, or
any successor plans thereto over the three (3) complete fiscal
years prior to the Effective Date of Termination, or, if shorter,
over the Executive's entire period of employment. However, if the
Executive's period of employment is less than one year, the
average incentive compensation shall be considered zero (0); and
(d) An amount equal to the excess of (i) the maximum payment the
Executive would have received under the One-Year Incentive Plan
if he had continued in the employment of PCFC and the Bank
through the end of the performance period following the Effective
Date of Termination, and if the Bank had met its maximum
performance goals as provided under the terms of the Plan and the
maximum amount payable to the Executive had been paid, over (ii)
the actual payout under the One-Year Incentive Plan resulting
from the Executive's termination of employment; and
(e) A payout under the Long-Term Incentive Plan, in accordance with
the terms of such Plan; and
(f) A continuation of all welfare benefits at no direct cost to the
Executive, including medical insurance, long-term disability, and
group term life insurance for three (3) full years from the
Effective Date of Termination or until the Executive reaches his
Normal Retirement Date, whichever occurs earlier.
3.3 Reduction of Severance Benefits. In the event there are fewer than
thirty-six (36) whole or partial months remaining from the Executive's Effective
Date of Termination until the Executive's Normal Retirement Date, as defined
under the Retirement Plan, then the amounts provided for under Sections 3.2(a),
(b), and (c) above shall be reduced by a fraction, the
numerator of which shall be the number of whole or partial months remaining
until the Executive's Normal Retirement Date, and the denominator of which shall
be thirty-six (36).
3.4 Fringe Benefits. The Executive's participation in fringe benefits prior
to the Executive's Effective Date of Termination shall be continued, or
equivalent benefits shall be provided, at no cost to the Executive, for a period
of three (3) years from the Executive's Effective Date of Termination (or until
he or she reaches his Normal Retirement Date, whichever occurs earlier).
3.5 Relocation Benefits. Should the Executive move his residence in order
to pursue other business opportunities within two (2) years of Executive's
Effective Date of Termination, the Executive shall be reimbursed for any moving
expenses (as defined in Section 217(b) of the Code) incurred in that relocation
(including taxes, if any, payable on the reimbursement) which are not reimbursed
by another employer. Benefits provided herein shall not exceed the assistance
and benefits customarily provided by PCFC to transferred employees prior to the
Change in Control.
3.6 Incentive Compensation. Any deferred awards previously granted to the
Executive under PCFC's incentive compensation plans and not previously paid to
the Executive, shall immediately vest on the date of the Executive's Effective
Date of Termination and shall be paid no later than ninety (90) calendar days
following that date, and be included as compensation in the month paid.
3.8 Stock Options and SARs. Stock options ("options") and stock
appreciation rights ("SARs"), if any, granted to the Executive by PCFC will be
exercisable pursuant to the terms of the applicable plans.
Article 4. Just Cause
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4.1 Just Cause. Nothing in this Agreement shall be construed to prevent
PCFC or the Bank from terminating an Executive's employment for Just Cause. In
such case, no Severance Benefits shall be payable to the Executive under this
Agreement.
Just Cause shall mean the criminal conviction of the Executive for an
act of fraud, embezzlement, theft or any other act constituting a felony.
The determination that the Executive's actions constitute Just Cause
for termination shall be made by the Board, acting in good faith.
Article 5. Form and Timing of Severance Benefits
-------------------------------------
5.1 Form and Timing of Severance Benefits. The Severance Benefits described
in Sections 3.2 (a), (b), (c), (d) and (e), shall be paid in cash to the
Executive in a single lump sum
as soon as practicable following the Executive's Effective Date of Termination,
but in no event beyond ninety (90) calendar days from such date.
The Severance Benefits described in Section 3.2(f) and 3.5 herein
shall be provided by PCFC to the Executive immediately upon the Executive's
Effective Date of Termination and shall continue to be provided for three (3)
full calendar years from the Executive's Effective Date of Termination or until
the Executive reaches his or her Normal Retirement date, whichever occurs
earlier.
5.2 Withholding of Taxes. PCFC shall withhold from any amounts payable
under this Agreement all Federal, state, city, or other taxes as legally shall
be required.
Article 6. Parachute Payments
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6.1 Excise Tax Cap. In the event that a Change in Control of PCFC shall
occur and a determination is made by PCFC, pursuant to Sections 280G and 4999 of
the Code (and corresponding state law provisions) that a golden parachute excise
tax is due, the Executive's Severance Benefits under this Plan shall be grossed
up for the amount equal to and only equal to the amount necessary to pay the
excise tax.
6.2 Subsequent Recalculation. In the event the Internal Revenue Service
adjusts the excise tax computation of PCFC, as provided in Section 6.1 herein,
such that the Executive is liable for the payment of a greater excise tax under
Sections 280G and 4999 of the Code, or such that the Executive does not receive
the full benefit that he or she would have received, PCFC shall reimburse the
Executive for the full amount necessary to make the Executive whole (less any
amounts received by the Executive that he or she would not have received had the
computation initially been computed as subsequently adjusted), including the
value of the excise tax and all corresponding interest and penalties due to the
Internal Revenue Service.
Article 7. Other Rights and Benefits Not Affected
--------------------------------------
7.1 Other Benefits. Neither the provisions of this Agreement nor the
Severance Benefits provided for hereunder shall reduce any amounts otherwise
payable, or in any way diminish the Executive's rights as an employee of PCFC,
whether existing now or hereafter, under any benefit, incentive, retirement,
stock option, stock bonus, stock purchase plan, or any employment agreement, or
other plan or arrangement.
7.2 Employment Status. This Agreement does not constitute a contract of
employment or impose on the Executive or PCFC any obligation to retain the
Executive as an employee, to change the status of the Executive's employment, or
to change PCFC's policies regarding termination of employment.
Article 8. Successors
----------
8.1 Successors. PCFC will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) of all or
substantially all of the business and/or assets of PCFC or of any division or
subsidiary thereof to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that PCFC would be required to perform it
if no such succession had taken place. Failure of PCFC 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
PCFC in the same amount and on the same terms as they would be entitled
hereunder if terminated voluntarily following a Change in Control. Except for
the purposes of implementing the foregoing, the date on which any succession
becomes effective shall be deemed the Effective Date of Termination.
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 an Executive should
die while any amount would still be payable hereunder had the Executive
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement, to the Executive's devisee,
legatee, or other designee, or if there is no such designee, to the Executive's
estate.
8.2 Beneficiaries. The beneficiary of the Executive under the Pacific
Century Financial Corporation Money Purchase Plan shall be the beneficiary of
the Executive's benefits under this Agreement, unless a beneficiary is otherwise
designated by the Executive in the form of a signed writing acceptable to the
Committee. An Executive may make or change such designation at any time.
Article 9. Administration
--------------
9.1 Administration. This Agreement shall be administered by the
Compensation Committee of the Board of Directors. The Committee is authorized to
interpret this Agreement, to prescribe and rescind rules and regulations, to
provide conditions and assurances deemed necessary and advisable, to protect the
interests of PCFC, and to make all other determinations necessary or advisable
for the Agreement's administration.
In fulfilling its administrative duties hereunder, the Committee may
rely on outside counsel, independent accountants, or other consultants to render
advice or assistance.
9.2 Indemnification and Exculpation. The members of the Board, its agents
and officers, directors, and employees of PCFC and its affiliates shall be
indemnified and held harmless by PCFC against and from any and all loss, cost,
liability, or expense that may be imposed upon or reasonably incurred by them in
connection with or resulting from any claim, action, suit, or proceeding to
which they may be a party or in which they may be involved by reason of any
action taken or failure to act under this Agreement and against and from any and
all amounts paid by them in settlement (with PCFC's written approval) or paid by
them in satisfaction of a judgment in any such action, suit, or proceeding. The
foregoing provision shall
not be applicable to any person if the loss, cost, liability, or expense is due
to such person's gross negligence or willful misconduct.
Article 10. Legal Fees
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10.1 Legal Fees and Expenses. PCFC shall pay all reasonable legal fees,
costs of litigation, and other expenses incurred in good faith by the Executive
as a result of PCFC's refusal to provide the Severance Benefits to which the
Executive becomes entitled under this Agreement, or as a result of PCFC's
contesting the validity, enforceability, or interpretation of the Agreement.
Provided, however, that such payments shall not exceed the amount permitted by
law and PCFC's Restated Articles of Incorporation.
IN WITNESS WHEREOF, PCFC has caused this Agreement to be executed by a
resolution of the Board of Directors, as of the day and year first above
written.
Pacific Century Financial Corporation
By: /S/ Xxxxxxx X. X'Xxxxx
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Xxxxxxx X. X'Xxxxx
Its: Chairman & CEO
By: /S/ Xxxxx X. Xxxxxx
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(Executive)
ATTEST:
/S/ Xxxx X. Xxxxxxxxxx
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