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Exhibit 10.23
BENEFITS PROTECTION AGREEMENT
THIS AGREEMENT made as of the 22nd day of October, 1996, by and between
U.S. Trust Corporation (the "Corporation"), United States Trust Company of New
York (the "Company") and (the "Executive").
WHEREAS, the Board of Directors of the Company and the Board of
Directors of the Corporation (the "Boards") recognize that the possibility of a
Change in Control (as hereinafter defined) exists and that the threat or the
occurrence of a Change in Control can result in significant distraction of the
key management personnel of the Company and its affiliates because of the
uncertainties inherent in such a situation;
WHEREAS, the Boards have determined that it is essential and in the
best interests of the Company, and the Corporation and its stockholders, for the
Company and its affiliates to retain the services of the Executive in the event
of a threat or occurrence of a Change in Control and to ensure the Executive's
continued dedication and efforts in such event without undue concern for the
Executive's personal financial and employment security; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Company or its affiliates, particularly in the event of a threat or the
occurrence of a Change in Control, the Company desires to enter into this
Agreement with the Executive to provide assurances to the Executive as to the
payment of certain benefits to the Executive if a Change in Control should
occur, and as to the payment of certain other benefits if the Executive's
employment is terminated following a Change in Control.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. TERM OF AGREEMENT. This Agreement shall commence as of October 22,
1996, and shall continue in effect until October 31, 1998 (the "Term");
provided, however, that on November 1, 1997, and on each November 1 thereafter,
the Term shall automatically be extended for one (1) year unless the Company
shall have given written notice to the Executive at least ninety (90) days prior
thereto that the Term shall not be so extended; provided, further, however, that
following the occurrence of a Change in Control, the Term shall not expire prior
to the expiration of four (4) years after such occurrence.
2. BENEFITS PAYABLE ON CHANGE IN CONTROL. If (i) a Change in Control
(as defined in Section 11(a) hereof) occurs during the Term, (ii) the
Executive's employment with the Company and all of its affiliates has not
terminated prior to the date on which such Change in Control occurs, and (iii)
such Change in Control is not treated as a "Change in Control" for purposes of
any Change in Control Plan (as defined in Section 11(b) hereof) maintained by
the Corporation or the Company,
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the Corporation or the Company, as applicable, shall pay to the Executive
pursuant to this Agreement each benefit that would have been payable to the
Executive under each such Change in Control Plan if the Change in Control (as
defined in Section 11(a) hereof) had been treated as a "Change in Control" for
purposes of such plan.
3. BENEFITS PAYABLE ON INVOLUNTARY TERMINATION AFTER CHANGE IN CONTROL.
If (i) a Change in Control (as defined in Section 11(a) hereof) occurs during
the Term, (ii) the Executive's employment with the Company and all of its
affiliates terminates as a result of an Involuntary Termination (as defined in
Section 11(c) hereof) within two (2) years following such Change in Control, and
(iii) for purposes of any Change in Control Plan (as defined in Section 11(b)
hereof) maintained by the Corporation or the Company, the Boards have directed
by resolution that no payments or benefits shall be made or provided under such
plan as a result of the occurrence of such Change in Control, then the
Corporation or the Company, as applicable, shall pay or provide to the Executive
pursuant to this Agreement each benefit that would have been payable or provided
to the Executive upon such termination of the Executive's employment under each
such Change in Control Plan if the Boards did not so direct.
4. BENEFITS PAYABLE ON TERMINATION OF RETIREMENT PLAN AFTER CHANGE IN
CONTROL. If (i) a Change in Control (as defined in Section 11(a) hereof) occurs
during the Term, (ii) the Employees' Retirement Plan of United States Trust
Company of New York and Affiliated Companies (the "Retirement Plan") is
terminated within four (4) years following such Change in Control, (iii) the
Executive's employment with the Company and all of its affiliates had not
terminated prior to such Change in Control, and (iv) such Change in Control is
not treated as a "Change in Control" for purposes of Section 13.2 of the
Retirement Plan, the Company shall pay to the Executive pursuant to this
Agreement the increased benefit that would have been payable to the Executive
under Section 13.2 of the Retirement Plan as a result of such termination of the
Retirement Plan if the Change in Control (as defined in Section 11(a) hereof)
had been treated as a "Change in Control" for purposes of Section 13.2 of the
Retirement Plan.
5. TERMINATION BEFORE CHANGE IN CONTROL. If the Executive's employment
with the Company and all of its affiliates is terminated by the Company or any
affiliate at any time prior to a Change in Control (as defined in Section 11(a)
hereof) and the Executive reasonably demonstrates that such termination was at
the request of a third party who had indicated an intention or had taken steps
reasonably calculated to effect such Change in Control and who effectuated such
Change in Control, such termination of the Executive's employment shall be
treated, for purposes of this Agreement, as an Involuntary Termination (as
defined in Section 11(c) hereof) of the Executive's employment occurring
immediately after the Change in Control, and as an "Involuntary Termination" of
the Executive's employment occurring immediately after a "Change in Control" as
those terms are defined in the applicable Change in Control Plans.
6. TIME AND MANNER OF PAYMENT. Each benefit payable to the Executive
hereunder shall be paid or provided in the same amount, in the same form, and at
the same time or for the same period, as such benefit would have been paid or
provided to the Executive under the terms of the
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applicable Change in Control Plan if the Change in Control (as defined in
Section 11(a) hereof) had been treated as a "Change in Control" for purposes of
such plan.
If any payment to be made to the Executive under this Agreement is or
will be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties with respect to such excise tax (such excise tax, together
with any such interest and penalties, are collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon such payment. The amount of the Gross-Up Payment shall be
determined in the same manner, and shall be paid in the same form and at the
same time, as provided in the 1990 Change in Control and Severance Policy for
Top Tier Officers of United States Trust Company of New York and Affiliated
Companies (as it may hereafter be amended to the extent provided in Section
11(b) hereof).
The Corporation or the Company shall deduct from any payment otherwise
required to be made to the Executive hereunder all federal, state, local and
other taxes required by law to be withheld with respect to such payment.
7. CORPORATION'S OBLIGATION. The Corporation agrees that it will take
such steps as may be necessary to cause the Company to meet each of its
obligations to the Executive under this Agreement.
8. NON-DUPLICATION OF BENEFITS. If the Executive receives a payment
under Section 2 hereof with respect to any option held by the Executive under
the 1995 Stock Option Plan of U.S. Trust Corporation, the option so held by the
Executive shall be treated as cancelled, for purposes of such plan, effective
immediately after the Change in Control resulting in such payment. The
obligations of the Corporation or the Company to make any other payment under
any other Change in Control Plan shall be offset to the extent such payment is
made under this Agreement.
9. SUCCESSORS. This Agreement shall be binding upon the Corporation,
the Company, and any assignee or successor corporation or organization resulting
from the merger, consolidation or other reorganization thereof or succeeding to
substantially all of the assets and business of the Corporation or the Company.
The Corporation and the Company agree that they will make appropriate provision
for the preservation of the Executive's rights under this Agreement in any
agreement or plan that they may enter into or adopt to effect any such merger,
consolidation, reorganization or transfer of assets.
10. NON-ASSIGNABILITY. Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by the Executive, his
beneficiaries or legal representatives, except by will or by the laws of descent
and distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive s legal personal representative.
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11. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
(a) "CHANGE IN CONTROL" shall mean that any of the following events has
occurred:
(i) 20% or more of the common shares of the Corporation has
been acquired by any person (as defined by Section 3(a)(9) of the
Securities Exchange Act of 1934) other than directly from the
Corporation,
(ii) there has been a merger or equivalent combination after
which 49% or more of the voting shares of the surviving corporation is
held by persons other than former shareholders of the Corporation, or
(iii) 20% or more of the directors elected by shareholders to
the Board of Directors of the Corporation are persons who were not
nominated in the most recent proxy statement of the Corporation.
(b) "CHANGE IN CONTROL PLAN" shall mean (i) in the case of the Company,
the 1990 Change in Control and Severance Policy for Top Tier Officers of United
States Trust Company of New York and Affiliated Companies; and (ii) in the case
of the Corporation, the following: the Benefit Equalization Plan of U.S. Trust
Corporation, the 1989 Stock Compensation Plan and Predecessor Plans of U.S.
Trust Corporation, the 1995 Stock Option Plan of U.S. Trust Corporation, the
Executive Incentive Plan of U.S. Trust Corporation, and the Executive Deferred
Compensation Plan of U.S. Trust Corporation. Each plan referred to in (i) and
(ii) of the preceding sentence shall mean the plan as in effect on the date of
this Agreement, and as amended from time to time thereafter; provided, however,
that any such amendment shall be taken into account for purposes of this
Agreement only to the extent it would not result in any reduction of the
benefits payable hereunder to the Executive with respect to such plan as in
effect prior to such amendment.
(c) "INVOLUNTARY TERMINATION" shall mean the termination of an
Executive's employment with the Company and all of its affiliates
(i) by the Company or an affiliate, or
(ii) by the Executive following
(A) any reduction in the Executive's base salary,
or in the Executive's opportunity to earn an annual bonus
in an amount at least equal to the percentage of the
Executive's annual base salary that was used to determine
the Executive's target bonus award for the year
immediately preceding the year in which a Change in
Control occurs,
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(B) any change, without the Executive's consent, in
the location of the Executive's place of employment to a
borough other than Manhattan or, if such place of
employment is not in Manhattan, to a city other than the
city in which the Executive's place of employment is
located,
(C) any material diminishment of the Executive's
responsibilities with respect to the business of the
Company or an affiliate, or
(D) any other material adverse change in the
conditions of the Executive's employment with the Company
or an affiliate.
An Involuntary Termination pursuant to clause (ii) above shall be
deemed to occur within two (2) years of a Change in Control if the event
described in subclause (A), (B), (C) or (D) that gives rise to such termination
occurs within two (2) years of a Change in Control and such termination occurs
within six (6) months after such event.
IN WITNESS WHEREOF, the Corporation and the Company have caused this
Agreement to be executed by their duly authorized officers and the Executive has
executed this Agreement as of the day and year first above written.
U.S. TRUST CORPORATION
ATTEST: By:
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Xxxxxx X. Xxxxx, Chairman
Compensation and Benefits Committee
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Secretary
UNITES STATES TRUST COMPANY
OF NEW YORK
ATTEST: By:
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Xxxxxx X. Xxxxx, Chairman
Compensation and Benefits Committee
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Secretary
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[Name of Executive]
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