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EXHIBIT 10(i)(ii)
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (hereafter referred to as this
"Agreement") is made by and between UST Corp., a Massachusetts corporation, (the
"Company") and Xxxxxxx X. Xxxxxxxxx (the "Employee") as of the 10th day of
August, 1998 (the "Effective Date").
In consideration of the mutual promises, terms and conditions contained
in this Agreement, the parties agree as follows:
1. EMPLOYMENT. The Company agrees to employ the Employee, and the
Employee agrees to accept employment, subject to the terms and conditions
contained in this Agreement.
2. TERM. Subject to earlier termination, as provided hereafter, the
Employee's employment hereunder shall be for an initial term commencing on the
Effective Date and ending on January 4, 2000 (the "Initial Term"), and shall
automatically renew thereafter for a first renewal term which shall expire on
August 9, 2001; provided, however, that the Company, at its option, may elect to
extend the first renewal term beyond August 9, 2001 to the expiration date of
any employment agreement between the Company and Xx. Xxxx X. Xxxxxxxx with an
effective date on or about January 5, 2000. Upon the expiration of the first
renewal term of this Agreement, this Agreement shall automatically renew
thereafter for successive terms of one year each, unless either party gives
notice to the other at least sixty (60) days prior to the expiration of the
first renewal term or any subsequent renewal term that this Agreement shall not
renew. Notwithstanding the foregoing, in the event that this Agreement is in
effect on the date of consummation of a Change of Control, as defined in Section
5.g.ii below, this Agreement shall automatically be extended on said date such
that the remaining term of the Agreement shall then be two (2) years and, upon
the expiration of that extension, shall thereafter resume automatic renew for
successive terms of one year each, unless either party gives notice to the other
at least sixty (60) days prior to the expiration of the extension or any
subsequent renewal term that this Agreement shall not renew. The term of this
Agreement, as from time to time renewed or extended in accordance with this
Section 2, is hereafter referred to as "the term hereof" or "the term of this
Agreement."
3. PERFORMANCE.
a. During the term hereof, the Employee shall serve the
Company as its Vice Chairman and Chief Operating Officer and as President and
Chief Operating Officer of USTrust and, if so elected or appointed from time to
time, shall also serve as a director of the Company or as a director or officer
of one or more of the Company's Affiliates, as defined in Section 15, below. The
Employee shall perform the duties and assume the responsibilities of such
positions and such other appropriate duties and responsibilities as may be
assigned by the Board of Directors of the Company (the "Board") or its
designees. All such services shall be rendered by the Employee in good faith and
in a manner consistent with banking industry standards.
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b. During employment, the Employee shall devote his full
business time and best efforts, judgment, skill and knowledge exclusively to the
advancement of the interests of the Company, USTrust and any other Affiliates of
the Company with which he holds a position or office and to the discharge of his
duties and responsibilities for those entities. While employed by the Company or
any of its Affiliates, the Employee shall not be engaged in any other business
activity, except with the written approval of the Board or its designee or of
the President of the Company. It is agreed, however, that the provisions of this
Section 3.b shall not be violated by the Employee's holding of directorships or
related positions in charitable, educational or not-for-profit organizations
which do not involve continuous or substantial time commitments or by passive
personal investment activities, provided that such positions and activities are
not in conflict, and do not otherwise interfere, with the Employee's duties and
responsibilities to the Company, USTrust or any of the Company's other
Affiliates.
4. COMPENSATION.
a. BASE SALARY. As compensation for all services performed for
the Company and its Affiliates during the term of this Agreement, the Company
shall pay the Employee a base salary at an annual rate of not less than Three
Hundred and Twenty-Five Thousand Dollars ($325,000), subject to increase from
time to time by the Company in its discretion. The Employee's base salary, as
from time to time increased, is hereafter termed the "Base Salary."
b. BONUS. During the term hereof, the Employee shall be
eligible to participate in the Company's annual incentive plan for executives,
as in effect from time to time, in accordance with its terms. The Employee shall
not be eligible to participate in any other bonus plan, program or arrangement
of the Company or USTrust during the term hereof unless expressly so authorized
by the Board.
c. AUTOMOBILE ALLOWANCE. The Employee shall receive an
allowance of Seven Hundred and Ninety Dollars ($790) per month which he shall
use to defray the costs of the business use of an automobile owned or leased by
the Employee.
d. DUES AND EXPENSES. The Employee's annual dues and
reasonable business expenses related to business of the Company, USTrust and the
Company's other Affiliates at the Harvard Club and the Union Club shall also be
reimbursed by the Company.
e. STOCK OPTIONS. The Employee shall be granted restricted
stock and stock options in accordance with the vote of the Compensation
Committee of the Board on May 19, 1998, which grant shall be subject to an
agreement between the Employee and the Company on terms comparable to those
generally offered to executive officers of the Company in connection with the
grant of restricted stock and/or stock options (the "Stock Compensation
Agreement") and the Company's Stock Compensation Plan, as amended by the Company
from time to time (the "Stock Compensation Plan").
f. EMPLOYEE BENEFITS. During the term hereof, the Employee
shall be entitled
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to participate in any and all employee benefit plans from time to time in effect
for employees of the Company generally or for executive officers of the Company
generally, including without limitation the Company's Supplemental Retirement
Benefits Plan(s), but excluding plans providing payments and/or other benefits
in the event of termination of employment. Such participation shall be subject
to the terms of the applicable plan documents, generally applicable Company
policies and the discretion of the Board or any administrative or other
committee provided for in or contemplated by such plan.
5. TERMINATION OF EMPLOYMENT. Notwithstanding the provisions of Section
2 above, the Employee's employment under this Agreement shall terminate under
the following circumstances and, in that event, the Company shall have only such
obligations to the Employee as are specified below under the applicable
termination provision:
a. UPON DEATH. In the event of the Employee's death during the
term hereof, the Employee's employment hereunder shall immediately and
automatically terminate. In such event, the Company shall pay to the Employee's
designated beneficiary or, if no beneficiary has been designated by the
Employee, to the Employee's estate, Base Salary earned but unpaid through the
date of termination, any bonus awarded but not yet paid and pay for any vacation
time accrued but not used through the date of termination. .
b. AS A RESULT OF DISABILITY. In the event that the Employee
becomes disabled during the term hereof and, as a result, is unable to perform
substantially all of his/her duties for the Company for more than one hundred
and eighty (180) days during any period of three hundred and sixty-five (365)
days, the Company may terminate the Employee's employment without further
obligation upon notice to the Employee. In the event of such disability, the
Employee will continue to receive the Base Salary and benefits in accordance
with Section 4 hereof until the earlier of the date the Employee becomes
eligible for disability income under the Company's long-term disability or
workers' compensation insurance plan or the date his employment terminates.
c. BY THE COMPANY FOR CAUSE. The Company may terminate the
Employee's employment for Cause at any time upon notice to the Employee. The
following, as determined by the Board in its reasonable judgment, shall
constitute Cause for termination: (i) the Employee's willful failure to perform,
or gross negligence in the performance of, his duties or responsibilities on
behalf of the Company, USTrust and, as applicable, other Affiliates of the
Company; (ii) the Employee's willful violation of any provision of federal or
state banking or securities law; (iii) the Employee's gross misconduct; (iv) the
Employee's fraud, embezzlement or other material dishonesty with respect to the
Company, USTrust or any of the Company's other Affiliates or (v) his conviction
of, or plea of no contest to, a felony; provided, however, in the event of Cause
arising under clause (i), (ii) or (iii) of this Section 5.c, that the Company
has given the Employee notice, setting forth in reasonable detail the nature of
such Cause, and ten business days' opportunity to cure and the Employee has
failed to effect a cure within that ten-day period in a manner which reasonably
assures the Company that such Cause will not recur. In the event of termination
hereunder, the Company shall have no further obligation to the Employee, other
than
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for Base Salary earned but unpaid through the date of termination, any bonus
awarded but not yet paid and pay for any vacation time accrued but not used
through the date of termination.
d. BY THE COMPANY OTHER THAN FOR CAUSE. The Company may
terminate the Employee's employment other than for Cause upon notice to the
Employee under this subsection d or under subsection g below, whichever is
applicable. In the event of such termination prior to, or more than two years
following, a Change of Control and provided that the Employee executes the
release of claims attached hereto and marked "A" (the "Employee Release") within
twenty-one (21) days of his receipt of notice of termination of employment and
does not timely revoke the Employee Release, the Company:
i. shall pay the Employee severance pay in an amount equal to
eighteen (18) months' Base Salary at the rate in effect on the date of
termination, which the Employee may elect to receive (A) in a single
lump sum, payable within thirty (30) days following the effective date
of the Employee Release or (B) as salary continuation payable at the
Company's regular payroll periods and in accordance with its regular
payroll practices commencing on the next regular payday immediately
following the effective date of the Employee Release, but retroactive
to the date of termination and,
ii. at the Employee's election, (A) shall continue to pay, for
the period of eighteen (18) months following termination of the
Employee's employment or, if earlier, until the date the Employee is
covered under another employer's health plan that is comparable to that
of the Company (the "Post-Employment Health Coverage Period"), that
share of the premium cost of Employee's participation and that of his
eligible dependents in the Company's group health plan as it pays for
active employees of the Company and their eligible dependents generally
OR (B) shall pay the Employee a single lump sum payment equal to the
amount that the Company would have expended if participation had been
elected and continued for a period of eighteen (18) months, which lump
sum shall be payable within thirty (30) days following the effective
date of the Employee Release, and the Employee and his eligible
dependents may exercise any rights they have under Sections 601-607 of
ERISA and Section 4980B of the Internal Revenue Code (collectively
referred to as "COBRA") to continue participation in the group health
plan at their cost, effective as of the date the Employee's employment
terminates. Should the Employee elect option (A) above, the period of
any continued health coverage to which the Employee and his eligible
dependents may be entitled COBRA as a result of the Employee's
termination of employment will commence at the end of the above-defined
Post-Employment Health Coverage Period. Notwithstanding anything to the
contrary contained herein, the Employee may elect option (A) directly
above only if the Employee elects to receive payment under Section
5.d.i., above, in the form of salary continuation and,
iii. in addition to the above, shall pay the Employee any Base
Salary earned but unpaid through the date of termination, any bonus
awarded but not yet paid and pay for any vacation time accrued but used
through the date of termination.
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e. BY THE EMPLOYEE FOR GOOD REASON. The Employee may terminate
employment hereunder for Good Reason upon notice to the Company setting forth in
reasonable detail the nature of such Good Reason. The following shall constitute
Good Reason for termination by the Employee: (i) failure of the Company to
continue the Employee in his position as the Company's Vice Chairman and Chief
Operating Officer and as President and Chief Operating Officer of USTrust; (ii)
a change adverse to the Employee in the Employee's primary reporting
relationship; (iii) material diminution in the nature or scope of the Employee's
responsibilities, duties or authority; (iv) material failure of the Company to
provide the Employee Base Salary and benefits in accordance with the terms of
Section 4 hereof; or (v) a permanent transfer of the Employee to a work site
more than twenty-five miles distant from his work site immediately following the
Effective Date. In the event of termination in accordance with this Section 5.e,
the Company shall provide the Employee Base Salary and health plan benefits in
accordance with Section 5.d hereof, provided that the Employee executes the
Employee Release within twenty-one (21) days of his notice of termination of
employment and provided further that the Employee does not timely revoke the
Employee Release. In addition to the payments and benefits to be provided the
Employee in accordance with this Section 5.e, the Employee shall be entitled to
receive Base Salary earned but unpaid through the date of termination, any bonus
awarded but not yet paid and pay for any vacation time accrued but used through
the date of termination.
f. BY THE EMPLOYEE OTHER THAN FOR GOOD REASON. The Employee
may resign employment other than for Good Reason at any time upon ninety (90)
days' notice to the Company. In the event of such termination, the Company shall
have no further obligation to the Employee, other than for Base Salary earned
but unpaid through the date of termination, any bonus awarded but not yet paid
and pay for any vacation time accrued but not used as of the date of
termination.
g. UPON A CHANGE OF CONTROL.
i. Upon a Change of Control, as defined in Section
5.g.ii, below, the Employee shall be entitled to terminate this Agreement by
notice to the Company or its successor, and in such event, and provided the
Employee executes the Employee Release within twenty-one (21) days of the date
he gives notice of termination of his employment and does not timely revoke it,
the Employee shall be entitled to pay and benefits in accordance with Section
5.g.ii below.
ii. If a Change of Control occurs and (A) the
successor to the Company does not expressly assume the Company's obligations
under this Agreement or (B) within two (2) years following such Change of
Control, the Company terminates the Employee's employment other than for Cause,
or the Employee terminates his employment for Good Reason, and, in any such
event, the Employee executes the Employee Release within twenty-one (21) days of
the date of notice of termination of his employment and does not
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timely revoke it, then, in lieu of any payment or other benefits to which the
Employee would otherwise be entitled under Section 5.d or 5.e hereof, the
Company
(1) shall provide the Employee a cash
severance payment equal to 2.99 times his "base amount" as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended,
exclusive of his W-2 earnings resulting from the exercise of stock
options, which cash severance payment shall be payable in one lump sum
within five (5) business days following the effective date of the
Employee Release and,
(2) at the Employee's election, (A) shall
continue to pay, during the Post-Employment Health Coverage Period,
that share of the premium cost of Employee's participation and that of
his eligible dependents in the Company's group health plan as it pays
for active employees of the Company and their eligible dependents
generally OR (B) shall pay the Employee a single lump sum payment equal
to the amount that the Company would have expended if participation had
been elected and continued for a period of eighteen (18) months, which
lump sum shall be payable within thirty (30) business days following
the effective date of the Employee Release, and the Employee and his
eligible dependents may exercise their rights under COBRA to continue
participation in the group health plan at their cost effective as of
the date his employment terminates. Should the Employee elect option
(A) above, the period of any continued health coverage to which the
Employee and his eligible dependents may be entitled under COBRA as a
result of the Employee's termination of employment will commence on the
date immediately following termination of his employment.
(3) Upon a Change of Control as defined in
the Company's Stock Compensation Plan as amended by the Company from
time to time, the vesting of any Company Restricted Common Stock
("Restricted Stock") or stock options to purchase Company Common Stock
granted to the Employee and not yet exercised, expired, surrendered or
canceled shall be in accordance with the Stock Compensation Plan.
(4) If in connection with a Change of
Control as defined in the Stock Compensation Plan any other employees
who hold stock options under that Plan or Restricted Stock will have
their options or Restricted Stock or both cashed out, whether under the
Stock Compensation Plan or otherwise, the Employee shall have the right
to have all or any of his options or Restricted Stock or both cashed
out on the same basis and at the same time the options and Restricted
Stock of such other employees are cashed out.
(5) In addition to the payments and/or
benefits to be provided the Employee under Subsections (1) and (2) of
this Section 5.g.ii, the Employee shall be entitled to receive Base
Salary earned but unpaid through the date of termination, any bonus
awarded but not yet paid and pay for any vacation time accrued but used
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the date of termination.
iii. Except as otherwise provided with respect to
subparagraphs g.ii.(3) and g.ii.(4) directly above, a "Change of Control" shall
be deemed to have been consummated if hereafter
(A) any "person", as such term used in
Section 13(d) and 14(d) of the Securities Exchange Act of 1934 as
amended (the "Exchange Act") other than the Company or any of its
Affiliates or any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any of its Affiliates,
becomes a beneficial owner (within the meaning of Rule 13d-3, as
amended, as promulgated under the Exchange Act), directly or
indirectly, of securities representing twenty-five (25%) percent or
more of the combined voting power of the Company's then outstanding
securities; or
(B) during any period of two consecutive
years (not including any period prior to the Effective Date),
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 clause (A), (C) or (D) of this Section 6.g.iii] whose
election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds 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 at least
a majority thereof; or
(C) there occurs a merger or consolidation
of the Company with any other corporation, other than a merger or
consolidation 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) more than eighty percent (80%) of
the combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation; provided, however, that a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no "person" (as hereinabove defined) acquires
more than twenty-five percent (25%) of the combined voting power of the
Company's then outstanding securities shall not constitute a Change of
Control; or
(D) the stockholders of the Company approve
a plan of a complete liquidation of the Company; or
(E) there occurs a closing of a sale or
other disposition by the Company of all or substantially all of the
Company's assets.
h. UPON EXPIRATION OF THE TERM HEREOF. Notice by the Company
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pursuant to Section 2 hereof that this Agreement shall not renew shall be
treated as termination by the Company other than for Cause pursuant to Section
5.d. Notice by the Employee pursuant to Section 2 hereof that this Agreement
shall not renew shall be treated as a termination by the Employee of his/her
employment other than for Good Reason.
6. CONFIDENTIAL INFORMATION. The Employee acknowledges that the Company
and its Affiliates continually develops Confidential Information, as defined in
Section 15 below, that the Employee may develop Confidential Information for the
Company and its Affiliates and that the Employee may learn of Confidential
Information during the course of employment. The Employee agrees to comply with
the policies and procedures of the Company and USTrust for protecting
Confidential Information and agrees that he shall never disclose to any person,
corporation or other entity, except as required for the proper performance of
his regular duties for the Company, USTrust and the Company's other Affiliates,
and shall never use for his own benefit or that of another, any Confidential
Information obtained by the Employee incident to his employment or other
association with the Company, USTrust or any of the Company's other Affiliates.
The Employee understands that this restriction will continue to apply throughout
his employment and after his employment terminates, regardless of the reason for
such termination; provided, however, that the obligations contained in this
Section 6 shall not apply to any Confidential Information that becomes publicly
known through no fault of the Employee and shall not prevent the Employee from
disclosing Confidential Information as required by law or regulation.
7. NON-COMPETITION. The Employee agrees that, in the event that he
leaves his employment without Good Reason during the term hereof or is
discharged during the term hereof for Cause, he will not enter into the
employment of any other financial institution or entity in Eastern Massachusetts
(as defined by the Federal Reserve Bank of Boston) having assets in excess of $1
billion for a period equal to the balance of the term provided for herein or for
a period of six months, whichever is greater. The Employee further agrees that,
for a period of two years following such termination of his employment, he will
not directly or indirectly, for his own account or for the account of others,
(i) solicit the business of persons or entities whom he knows to be customers of
the Company or any of its Affiliates with regard to the provision of any type of
financial service provided by the Company or any of its Affiliates or (ii) after
notice from the Company that any person or entity is a customer, commence or
continue the solicitation of such business from such person or entity or (iii)
solicit or hire executive personnel of the Company or any of its Affiliates for
the benefit of any entity controlled by the Employee or by which the Employee is
employed or from which the Employee receives any form of fee or compensation.
8. REMEDIES. The Employee acknowledges that, if he were to breach any
of the provisions of Section 6 or Section 7 of this Agreement, the harm to the
Company and its Affiliates would be irreparable. The Employee therefore agrees
that, in addition to any other remedies available to it, the Company and its
Affiliates shall be entitled to obtain preliminary and permanent injunctive
relief against any such breach, without having to post bond, and to
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recover any and all costs and expenses incurred in enforcing this Agreement. In
the event that any provision of Section 6 or Section 7 hereof shall be
determined by any court of competent jurisdiction to be unenforceable by reason
of its being extended over too great a time, too large a geographic area or too
great a range of activities, such provision shall be deemed to be modified to
permit its enforcement to the maximum extent permitted by law.
9. TAXES. All payments made to the Employee under this Agreement shall
be reduced by any tax or other amount required to be withheld by the Company
under applicable law.
10. REDUCTIONS. Notwithstanding anything to the contrary contained in
this Agreement, (a) any and all payments and benefits to be provided to the
Employee hereunder are subject to reduction to the extent required by applicable
statutes, regulations, rules and directives of federal, state and other
governmental and regulatory bodies having jurisdiction over the Company and/or
any of its Affiliates and (b) the payments and benefits to which the Employee
would be entitled pursuant to Section 5.g hereof or otherwise as a result of a
Change of Control shall be reduced to the maximum amount for which the Company
will not be limited in its deduction pursuant to Section 280G of the Internal
Revenue Code of 1986, as amended, or any successor provision. Any such reduction
shall be applied to the amounts due to the Employee in such manner as the
Employee may reasonably specify within thirty (30) days following notice from
the Company of the need for such reduction or, if the Employee fails to so
specify timely, as determined by the Company.
11. NO CONFLICTING AGREEMENT. The Employee hereby represents and
warrants to the Company that he is under no contract, agreement or obligation
which (i) prohibits him from entering into this Agreement, (ii) conflicts with
the terms of this Agreement or (iii) prevents him, in any way, from performing
the duties contemplated hereby.
12. SEVERABILITY. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
13. ASSIGNMENT. The Company may assign its rights and obligations under
this Agreement without the consent of the Employee in the event that the Company
shall hereafter effect a reorganization, consolidate with, or merge into, any
other person, corporation or other entity or transfer all or substantially all
of its assets to any other person, corporation or other entity. The Company
requires the personal services of the Employee and he may not assign this
Agreement. This Agreement shall inure to the benefit of and be binding upon the
Company and the Employee and their respective successors, executors,
administrators, heirs and permitted assigns.
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14. INDEMNIFICATION. The Company shall, and the Company shall use its
best efforts to cause its Affiliates to, indemnify the Employee to the maximum
extent permitted by law and regulation in connection with any liability, expense
or damage which the Employee incurs or to which the Employee is exposed as a
result of the Employee's employment and positions with the Company and its
Affiliates as contemplated by this Agreement, provided that the Employee shall
not be indemnified with respect to any matter as to which he shall have been
adjudicated in any proceeding not to have acted in good faith in the reasonable
belief that his action was in the best interest of the Company and its
Affiliates. The Company, on behalf of itself and its Affiliates, hereby confirms
that the occupancy of all offices and positions which are occupied or held by
the Employee, now or hereafter, have been so occupied or held at the request of
and for the benefit of the Company and its Affiliates for purposes of the
Employee's entitlement to indemnification under applicable provisions of the
respective articles of organization and/or other similar documents of the
Company and its Affiliates.
15. DEFINITIONS. As used in this Agreement:
"Affiliates" means all persons and entities directly or indirectly
controlling, controlled by or under common control with the Company, where
control may be by management authority, equity interest or otherwise.
"Confidential Information" means any and all information of the Company
and its Affiliates that is not generally known by others with whom any of them
competes or does business, or with whom any of them plans to compete or do
business, including without limitation any and all information concerning
acquisition, expansion, and other strategic plans of the Company and its
Affiliates, the identity and special needs of the customers of the Company and
its Affiliates and the people and organizations with whom the Company or any of
its Affiliates has business relationships and the substance of those
relationships. Confidential Information also includes any information received
by the Company or any of its Affiliates from customers or others with any
understanding, express or implied, that it will not be disclosed.
16. MISCELLANEOUS. This Agreement sets forth the entire agreement
between the Company and the Employee and supersedes all prior communications,
agreements and understandings, whether written or oral, with respect to the
Employee's employment and all matters related thereto, including without
limitation the agreement between the Employee and Affiliated Community Bancorp,
Inc. dated as of the 14th day of October, 1997 and captioned "Special
Termination Agreement," which the parties expressly agree shall be void and of
no force or effect, and excluding only the Stock Compensation Agreement, which
shall remain in effect. The headings and captions contained herein are for
convenience of reference only and are not part of this Agreement. This Agreement
may not be modified or amended, and no breach of this Agreement shall be deemed
to be waived, unless agreed to in writing by the Employee and a duly authorized
representative of the Company. This is a Massachusetts
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contract and shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts.
17. NOTICES. Any notices provided for in this Agreement shall be in
writing and shall be effective when delivered in person or deposited in the
United States mail, postage prepaid, and addressed to the Employee at his last
known address on the books of the Company or, in the case of the Company, at its
main office, attention of the Senior Vice President, Human Resources with a copy
to the General Counsel of the Company.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company, by its duly authorized representative, and by the
Employee, as of the date first written above.
THE EMPLOYEE UST CORP.
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------ -------------------
Xxxxxxx X. Xxxxxxxxx Xxxx X. Xxxxxxx
Title: Executive Vice President
--------------------------
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"A"
RELEASE OF CLAIMS
FOR AND IN CONSIDERATION OF the special payments to be made to me in
connection with my separation of employment, as set forth in the employment
agreement between UST Corp and me dated as of the 10th day of August, 1998 (the
"Employment Agreement"), I, on my own behalf and on behalf of my heirs,
beneficiaries and representatives and all others connected with me, hereby
release and forever discharge UST Corp. (the "Company"), its Affiliates (as that
term is defined in Section 15 of the Employment Agreement), and all of their
respective officers, directors, shareholders, employees, agents,
representatives, successors and assigns and all others connected with them (all
collectively, the "Released"), both individually and in their official
capacities, from any and all liabilities, claims, demands, actions and causes of
action of any type (all collectively "Claims") which I have had in the past, now
have, or might now have, through the date of my execution of this Release of
Claims, in any way resulting from, arising out of or connected with my
employment or its termination or pursuant to any federal, state or local
employment law, regulation or other requirement (including without limitation
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the Americans with Disabilities Act and the Massachusetts fair employment
practices act, each as may be amended).
Excluded from the scope of this Release of Claims is (i) any claim
arising hereafter under the terms of the Employment Agreement or under the terms
of any of the Company's qualified and non-qualified employee benefit plans
(including without limitation the Company's employee pension plan, profit
sharing plan or stock ownership plan) and (ii) any right of indemnification or
contribution pursuant to the Articles of Organization or By-Laws of the Company
that I have or hereafter acquire if any claim is asserted or proceedings are
brought against me by any governmental or regulatory agency, or by any customer,
creditor, employee or shareholder of the Company, or by any self-regulatory
organization, stock exchange or the like, related or allegedly related to my
having been an officer or employee of the Company or to any of my activities as
an officer or employee of the Company.
By acceptance of or reliance on this Release of Claims, the Company
promises that neither it nor any of the other Released affiliated with the
Company will taken any action that is designed, specifically as to me or with
respect to a class of similarly situated former employees, to reduce or
abrogate, or may reasonably be expected to result in an abridgement or
elimination of, any rights of indemnification or contribution available to me
pursuant to the Articles of Organization or By-Laws of the Company, or under any
policy or policies of directors and officers liability insurance affording
coverage to former officers and in effect from time to time, unless any such
abridgement or elimination of rights is also generally applicable to
then-current officers and employees of the Company.
In signing this Release of Claims, I acknowledge that I have had at
least twenty-one
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(21) days from the date of my receipt of notice of termination of my employment
(or, if applicable, the date I gave such notice to the Company) to consider the
terms of this Release of Claims, that I am encouraged by the Company to seek the
advice of an attorney prior to signing this Release of Claims and that I am
signing this Release of Claims voluntarily and with a full understanding of its
terms. I understand that I may revoke this Release of Claims at any time within
seven (7) days of the date of my signing by written notice to the President of
the Company and that this Release of Claims will take effect only upon the
expiration of such seven-day revocation period and only if I have not timely
revoked it.
IN WITNESS WHEREOF, I have set my hand and seal on the date written
below.
Signature: _________________________________
Xxxxxxx X. Xxxxxxxxx
Date Signed: _______________________________
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