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EXHIBIT 10(u)
CONSULTING AGREEMENT
Consulting Agreement (the "Agreement"), dated as of the 4th day of
January 2000, between Peoples Heritage Financial Group, Inc. (the "Company") and
Xxxxx X. Xxxxxx (the "Consultant").
WITNESSETH:
WHEREAS, the Company desires to have the Consultant provide, and the
Consultant is willing to provide the Company with, consulting services to the
Company on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the parties hereto agree as
follows:
1. CONSULTANCY.
(a) During the calendar year ended December 31, 2000 (the
"Consulting Period"), the Consultant undertakes to provide his personal advice
and counsel to the Company regarding its operations, customer relationships,
customer service and other business matters (collectively, the "Consulting
Services"), subject to the terms and conditions which are set forth herein.
(i) In no event shall the Consultant be required to
provide Consulting Services hereunder for more than 25 hours per week or 100
hours in any calendar month during the Consulting Period.
(ii) The Consultant shall provide Consulting Services
commensurate with the Consultant's prior experience as may be reasonably
requested by the Chief Executive Officer of the Company or his designee from
time to time and at mutually agreeable times. It is contemplated that the
Consulting Services will include, without limitation, service as Chairman of the
Customer Service Committee of the Company; continuation of the "customer
scorecard" reporting previously conducted by the Consultant; monthly meetings
between the Consultant and the Chief Executive Officer of the Company, the
Management Committee of the Company and/or the Board of Directors of the
Company; attendance at certain public functions on behalf of the Company and its
banking subsidiaries in states in which they have offices; and attendance at
certain functions of the Company. Consulting Services may be provided in person,
telephonically, electronically or by correspondence to the extent appropriate
under the circumstances.
(iii) The Consultant shall provide the Consulting Services
in the Haverhill, Massachusetts metropolitan area, provided that the Consultant
may be required to provide Consulting Services at the executive offices of the
Company located in Portland, Maine up to not more than two times per month
during the Consulting Period.
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(b) The Company shall reimburse the Consultant or otherwise
provide for or pay for all reasonable expenses incurred by the Consultant at the
request of the Company, subject to such reasonable documentation as may be
requested by the Company. If such expenses are paid in the first instance by the
Consultant, the Company shall reimburse the Consultant therefor upon receipt of
such reasonable documentation as may be requested by the Company.
(c) During the Consulting Period, the Consultant shall be treated
as an independent contractor and shall not be deemed to be an employee of the
Company or any subsidiary or other affiliate of the Company for any purpose.
2. NON-COMPETE.
The Consultant agrees that during the Consulting Period the Consultant
will not, directly or indirectly, without the prior written consent of the
Company, (i) become a director, officer, employee, principal, agent or
consultant of any insured depository institution, trust company or parent
holding company of any such institution or company which has an office in
Connecticut, Maine, Massachusetts or New Hampshire, and transacts business in
any area in such states in which the Company or any of its banking subsidiaries
maintains offices, provided, however, that this provision shall not prohibit the
Consultant from owning bonds, preferred stock or up to five percent (5%) of the
outstanding common stock of any such entity if such common stock is publicly
traded, (ii) solicit or induce, or cause others to solicit or induce, any
employee of the Company or any of its subsidiaries to leave the employment of
such entities or (iii) solicit any customer of the Company or any of its
subsidiaries other than in connection with the provision of Consulting Services
hereunder.
3. CONFIDENTIALITY.
Except (i) in the course of providing Consulting Services hereunder or
(ii) as required by law or regulation (including without limitation in
connection with any judicial or administrative process or proceeding), the
Consultant shall keep secret and confidential and shall not disclose to any
third party in any fashion or for any purpose whatsoever any information
regarding the Company or any of its subsidiaries which is (i) not available to
the general public and/or (ii) not generally known outside the Company, to which
he has or will have had access at any time during the course of his employment
by the Company or its subsidiaries or his consultancy with the Company,
including, without limitation, any such information relating to: business or
operations; plans, strategies, prospects or objectives; products, technology,
processes or specifications; research and development operations or plans;
customers and customer lists; distribution, sales, service, support and
marketing practices and operations; financial condition, results of operations
and prospects; operational strengths and weaknesses; and personnel and
compensation policies and procedures.
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4. INJUNCTIVE RELIEF.
Without intending to limit the remedies available to the Company, the
Consultant agrees that damages at law will be an insufficient remedy to the
Company in the event that the Consultant violates any of the provisions of
Sections 2 or 3, and that the Company may apply for and, upon the requisite
showing, have injunctive relief in any court of competent jurisdiction to
restrain the breach or threatened breach of or otherwise to specifically enforce
any of the covenants contained in Sections 2 or 3.
5. RELEASE.
(a) For, and in consideration of the commitments made herein by
the Company, the Consultant, for himself and for his heirs, successors and
assigns, does hereby release completely and forever discharge the Company and
its subsidiaries, affiliates, stockholders, attorneys, officers, directors,
agents, employees, successors and assigns, and any other party associated with
the Company (the "Released Parties"), to the fullest extent permitted by
applicable law, from any and all claims, rights, demands, actions, liabilities,
obligations, causes of action of any and all kind, nature and character
whatsoever, known or unknown, in any way connected with his employment by the
Company or any of its subsidiaries (including in each case predecessors
thereof), either as a director, officer or employee, or termination of such
employment. Notwithstanding the foregoing, the Consultant does not release the
Company from any obligations of the Company to the Consultant under (i) any
employee benefit plan or arrangement of the Company pursuant to which the
Consultant is entitled to any post-retirement benefits or payments, (ii) Section
5.9 of the Agreement and Plan of Merger, dated as of May 30, 1996, among the
Company, Peoples Heritage Merger Corp. and Family Bancorp (the "Merger
Agreement"), and (iii) this Agreement.
(b) For and in consideration of the commitments made herein by the
Consultant, including without limitation the releases in paragraph (a) above,
the Company, for itself, and for its successors and assigns does hereby release
completely and forever discharge the Consultant and his heirs, successors and
assigns, to the fullest extent permitted by applicable law, from any and all
claims, rights, demands, actions, liabilities, obligations, causes of action of
any and all kind, nature and character whatsoever, known or unknown, in any way
connected with the Consultant=s employment by the Company or any of its
subsidiaries (including predecessors thereof), either as a director, officer or
employee. Notwithstanding anything in the foregoing to the contrary, the Company
does not release the Consultant from claims arising out of any breach by the
Consultant of (i) any law or regulation by the Consultant during the term of and
related to his employment by the Company or any of its subsidiaries (including
predecessors thereof) or (ii) this Agreement.
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6. COMPENSATION.
(a) In consideration of the obligations and agreements of the
Consultant hereunder, the Company agrees to pay to the Consultant compensation
during the Consulting Period at a rate of $28,200 per year, payable in 12 equal
monthly installments on the last business day of each calendar month during the
Consulting Period. Payments to the Consultant under this Section 6 may be paid
by the Company by (i) check mailed to the address of the Consultant set forth in
Section 10 hereof or at such other address as the Consultant may notify the
Company in accordance with the terms of such section or (ii) deposit to an
account designated in writing by the Consultant.
(b) For purposes of this Agreement, the term "business day" means
any day other than a Saturday, a Sunday or a day on which banking institutions
in the State of Maine are authorized by law, regulation or executive order to
remain closed.
(c) In the event of a Change in Control of the Company, (i) any
remaining payments due to the Consultant pursuant to paragraph (a) of this
Section 6 shall become immediately due and payable in one lump sum payment, and
(ii) the Consultant shall not have any obligations under Section 2 of this
Agreement beyond the date of the Change in Control. A "Change in Control of the
Company" shall be deemed to have occurred: (i) if any "person," as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") (other than the Company and any trustee or other fiduciary
holding securities under any employee benefit plan of the Company), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 25% or
more of the combined voting power of the Company's then outstanding securities;
(ii) if at any time during the term of this Agreement, individuals who at the
beginning of such period constitute the Board of Directors, and any new director
whose election by the Board of Directors 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
two-year period or whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a majority of the Board of
Directors; (iii) upon the consummation of a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation that
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 50% of
the combined voting power of the voting securities of the Company outstanding
immediately after such merger or consolidation; or (iv) upon the complete
liquidation of the Company or the consummation of the sale or disposition by the
Company of all or substantially all of the Company's assets.
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7. NATURE OF PAYMENT OBLIGATIONS.
(a) Except as otherwise provided in Section 7(b) hereof, the
Company's obligation to pay the Consultant the benefits and payments provided in
Section 6 hereof shall be absolute and unconditional and shall not be affected
by any circumstances, including, without limitation, any purported termination
of this Agreement, other than pursuant to Section 7(b) hereof, set-off,
counterclaim, recoupment, defense or other right which the Company may have
against the Consultant or anyone else, and each and every such payment made or
benefit provided shall be final and the Company shall not seek to recover all or
any part of any such payment or benefit from the Consultant or from whomsoever
may be entitled thereto for any reason whatsoever.
(b) If the Consultant materially breaches any of his obligations
hereunder, the Company may terminate this Agreement by written notice of
termination provided to the Consultant, and thereafter the Consultant shall be
entitled to no further benefits and payments under the terms of this Agreement.
In the event of the death of the Consultant, the estate and heirs of the
Consultant shall be entitled to no further payments under Section 6(a) of this
Agreement.
8. REPRESENTATION. The Company and the Consultant represent and
warrant to each other that they have carefully read this Agreement and consulted
with respect thereto with their respective counsel and that each of them fully
understands the content of this Agreement and its legal effect. Each party
hereto also represents and warrants that this Agreement is a legal, valid and
binding obligation of such party which is enforceable against it in accordance
with its terms.
9. SUCCESSORS AND ASSIGNS. This Agreement will inure to the
benefit of and be binding upon the Consultant and his heirs, successors and
assigns, and upon the Company, including any successor to the Company by merger
or consolidation or any other change in form or any other person or firm or
corporation to which all or substantially all of the assets and business of the
Company may be sold or otherwise transferred. This Agreement may not be assigned
by any party hereto without the consent of the other party.
10. NOTICES. Any communication to a party required or permitted
under this Agreement, including any notice, direction, designation, consent,
instruction, objection or waiver, shall be in writing and shall be deemed to
have been given at such time as it is delivered personally, or five (5) days
after mailing if mailed, postage prepaid, by registered or certified mail,
return receipt requested, addressed to such party at the address listed below or
at such other address as one such party may by written notice specify to the
other party or parties, as applicable:
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If to the Consultant:
Xxxxx X. Xxxxxx
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxxxxx 00000
If to the Company:
Peoples Heritage Financial Group, Inc.
X.X. Xxx 0000
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
Attention: President
11. WITHHOLDING. The Company may withhold from any amounts payable
under this Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
12. ENTIRE AGREEMENT; SEVERABILITY. This Agreement incorporates
the entire understanding among the parties relating to the subject matter
hereof, recites the sole consideration for the promises exchanged and supersedes
any prior agreements between the Company and the Consultant with respect to the
subject matter hereof, provided that nothing contained herein shall affect any
obligations of the Company to the Consultant under (i) any employee benefit plan
or arrangement of the Company pursuant to which the Consultant is entitled to
any post-retirement benefits or payments and (ii) Section 5.9 of the Merger
Agreement. In reaching this Agreement, no party has relied upon any
representation or promise except those set forth herein. If any of the terms or
conditions of this Agreement shall be declared void or unenforceable by any
court or administrative body of competent jurisdiction, such term or condition
shall be deemed severable from the remainder of this Agreement, and the other
terms and conditions of this Agreement shall continue to be valid and
enforceable.
13. WAIVER. Failure to insist upon strict compliance with any of
the terms, covenants or conditions hereof shall not be deemed a waiver of such
term, covenant or condition. A waiver of any provision of this Agreement must be
made in writing, designated as a waiver and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
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15. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Maine
applicable to agreements made and entirely to be performed within such
jurisdiction.
16. HEADINGS. The headings of sections in this Agreement are for
convenience of reference only and are not intended to qualify the meaning of any
section. Any reference to a section number shall refer to a section of this
Agreement, unless otherwise stated.
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IN WITNESS WHEREOF, the Company and the Consultant have entered into
this Agreement as of the day and year first above written.
PEOPLES HERITAGE FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Chairman, President
and Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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