EXHIBIT 10(i)
BANKNORTH GROUP, INC.
RETENTION AGREEMENT
This Retention Agreement (this "Agreement") is made and entered into as of
the 30th of September, 2004, by and between Banknorth Group, Inc., a Maine
corporation, (the "Company") and Xxxxxx X. Xxxxxxxxx (the "Executive");
W I T N E S S E T H:
WHEREAS, the Company, Berlin Delaware Inc., a Delaware corporation and
wholly owned subsidiary of the Company ("Berlin Delaware"), The Toronto Dominion
Bank, a Canadian chartered bank, ("TD"), and Berlin Merger Co., a Delaware
corporation and wholly owned subsidiary of TD ("Berlin Mergerco"), have entered
into an Agreement and Plan of Merger dated as of August 25, 2004, whereby, among
other things, Berlin Mergerco will merge with and into Berlin Delaware (the
"Merger"); and
WHEREAS, the Company wishes to continue to retain the services of the
Executive after the Effective Date for the benefit of its successor Berlin
Delaware;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Executive hereby agree, contingent on completion of the Merger, as follows:
1. Definitions.
(a) Accrued Benefits means:
(i) all salary earned or accrued through the date the Executive's
employment is terminated, and any unpaid amounts described in Section
5(a);
(ii) reimbursement for any and all monies advanced in connection
with the Executive's employment for reasonable and necessary expenses
incurred by the Executive through the date the Executive's employment is
terminated;
(iii) any and all other compensation previously earned by the
Executive and deferred under or pursuant to any deferred compensation plan
or plans of the Company then in effect together with any interest or
deemed earnings thereon pursuant to, and to the extent consistent with,
the terms of such plan or plans;
(iv) any bonus earned by the Executive for a Year or other
performance period ending prior to the Year or other performance period in
which employment terminates, but not yet paid to the Executive, under any
bonus or incentive compensation plan or plans in which the Executive is a
participant;
(v) to the extent not previously paid or provided to the Executive,
all other payments and benefits to which the Executive may be entitled
under the terms of any applicable compensation or benefit plan, program or
arrangement of the Company except for any severance plan, or any plan,
program or arrangement that would result in any duplication of benefits.
(b) Affiliate of any specified person means any other person that,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under direct or indirect common control with such specified
person. For the purposes of this definition, "control" means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, by contract or
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otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
(c) Annual Bonus means any bonus or incentive award under any bonus or
incentive compensation plan, program or arrangement of the Company in which the
Executive is a participant the performance period for which is or was initially
scheduled to be one (1) year or less.
(d) Base Amount means an amount equal to the Executive's Annualized
Includable Compensation for the Base Period as defined in Section 280G(d)(1) and
(2) of the Code (as hereinafter defined).
(e) Benefit Computation Base means either (i) the Benefit Computation Base
as defined in the Supplemental Retirement Agreement between Executive and the
Company or (ii) if there is no Supplemental Retirement Agreement between the
Executive and the Company, the base annual compensation amount used in
calculating the Executive's benefits under the Retirement Plan.
(f) Bonus (whether or not capitalized) means any bonus or incentive award
(including any Annual Bonus or Long-Term Incentive Award) under any bonus or
incentive compensation plan, program or arrangement of the Company in which the
Executive is a participant.
(g) Cause means:
(i) the Executive's conviction of, or plea of nolo contendere to, a
felony; or
(ii) willful and intentional misconduct, willful neglect, or gross
negligence in the performance of the Executive's duties, which has caused
a demonstrable and serious injury to the Company, monetary or otherwise.
The Executive shall be given written notice that the Company intends to
terminate the Executive's employment for Cause.
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Such written notice shall specify the particular acts, or failures to act,
on the basis of which the decision to so terminate employment was made.
In the case of a termination for Cause as described in clause (ii), above,
the Executive shall be given the opportunity within thirty (30) days of the
receipt of such notice to meet with the Board of Directors of the Company to
defend such acts, or failures to act, prior to termination. The Company may
suspend the Executive's title and authority pending such meeting, and such
suspension shall not constitute Good Reason, as defined in subsection (o) below.
(h) Change of Control means a change of control, as that term is defined
in TD's Performance Based Restricted Share Unit Plan (Outside Canada) (as in
effect from time to time, or any successor plan), of either TD or the Company,
with such definition being appropriately adjusted, where necessary, to refer to
the Company.
(i) Code means the Internal Revenue Code of 1986, as amended.
(j) Deferred Compensation Plan means a deferred compensation plan approved
by the Compensation Committee of the Board.
(k) Disability means a disability entitling the Executive to payments
under the Company's long-term disability plan applicable to the Executive,
provided that in no event shall the Executive's employment be terminable by
reason of Disability unless the Executive shall have been absent from the
Executive's duties with the Company on a full-time basis for one hundred and
twenty (120) consecutive business days as a result of incapacity due to mental
or physical illness that is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Executive or the
Executive's legal representative.
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(l) Early Retirement Benefit means either (i) the "Early Retirement
Benefit" or "Early Retirement/Termination of Service Benefit" as defined in the
SERP Agreement or (ii) if there is no Supplemental Retirement Agreement between
the Executive and the Company, the early retirement benefit as defined in the
Retirement Plan.
(m) Effective Date means the date on which the Effective Time (as defined
in the Merger Agreement) occurs.
(n) EIP means the Company's Executive Incentive Plan as amended and in
effect on the Merger Agreement Date.
(o) Good Reason means:
(i) any breach of this Agreement by the Company, including without
limitation (A) any reduction during the Retention Period in the amount of
the Executive's base salary, incentive compensation opportunities or
aggregate welfare and pension benefits as in effect on the Effective Date,
or (B) failure to provide the Executive with the same fringe benefits that
were provided to the Executive immediately prior to the Effective Date, or
with a package of fringe benefits (including paid vacations) that, though
one or more of such benefits may vary from those in effect immediately
prior to the Effective Date, is substantially comparable in all material
respects to such fringe benefits taken as a whole;
(ii) without the Executive's express written consent, the assignment
to the Executive of any duties that are materially inconsistent with the
Executive's positions, duties, responsibilities and status immediately
following the Effective Date, a material change in the Executive's
reporting responsibilities, titles or offices as an employee and as in
effect immediately following the Effective Date, or a significant
reduction in the
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Executive's title, duties, or responsibilities, as in effect immediately
prior to the Effective Date, but without regard to the Executive's normal
and appropriate interaction with executives of TD as a result of the
Company's status as an Affiliate of TD;
(iii) the relocation of the Executive's principal place of
employment, without the Executive's written consent, to a location outside
the same metropolitan area in which the Executive was employed at the time
of the Effective Date, or the imposition of any requirement that the
Executives spend more than ninety (90) business days per year at a
location other than such principal place of employment; or
(iv) any purported termination of the Executive's employment for
Cause or Disability which is not effected pursuant to a satisfactory
Notice of Termination.
In the event of the occurrence of any of the events described in
(i), (ii), (iii) or (iv) above, the Executive may, within three (3) months after
the Executive has knowledge of the occurrence of any such event, give the
Company written notice that such event constitutes Good Reason, and the Company
shall thereafter have thirty (30) days in which to cure. If the Company has not
cured in that time, the event shall constitute Good Reason. If the Executive has
not given notice of Good Reason during such three (3) month period, such event
shall not constitute Good Reason.
(p) Long-Term Incentive Award means an incentive award under the EIP the
performance period for which is or was initially scheduled to be in excess of
one (1) year.
(q) Merger Agreement means the Agreement and Plan of Merger, dated as of
August 25, 2004 among the Company, Berlin Delaware, TD and Berlin Mergerco.
(r) Merger Agreement Date means the date upon which the Merger Agreement
was executed by the parties thereto.
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(s) Notice of Termination means a notice which shall indicate the specific
termination provision relied upon in this Agreement and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated.
(t) Plan Year with respect to any of the Retirement Plan or the 401(k)
Plan, the "plan year" as defined in such plan.
(u) Post-Retention Period Severance means a severance payment consisting
of eighteen (18) months of continuation of the Executive's then base salary.
(v) Pre-Merger Option means any option to purchase common stock of the
Company that was granted prior to the date on which the Merger Agreement was
executed by the parties thereto.
(w) Prorated Bonus means a lump sum cash payment payable within ten (10)
business days of the date of termination equal to the product of (x) the average
Annual Bonus paid (whether deferred or paid in equity) to the Executive under
the annual bonus plan of the Company for the last three (3) full fiscal years of
the Company ending prior to the date of termination or such shorter number of
years that the Executive has been employed by the Company and eligible to
receive a full year bonus and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the date of termination and
the denominator of which is three hundred and sixty-five (365).
(x) Retention Amount shall be:
(i) a lump sum payment equal to $1,127,964; and
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(ii) for purposes of determining the Executive's benefit under the
SERP Agreement an additional thirty-six (36) months of age and of service
shall be credited, determined as follows:
(A) The additional thirty-six (36) months of age and service
shall be applied for purposes of benefit accrual, vesting, eligibility for early
retirement, subsidized early retirement factors, actuarial equivalence and any
other purposes under the SERP Agreement.
(B) Any provision under the SERP Agreement prohibiting the
accrual of any additional benefits after the Executive has been credited with
more than a stated number of years of service shall be disregarded.
(C) For purposes of determining the amount of the Executive's
benefit under the SERP Agreement, the reduction in respect of the benefit paid
under the Retirement Plan shall be based on the Executive's actual Retirement
Plan benefit (that is, without any additional deemed service).
(D) For purposes of determining the Early Retirement Benefit
and other forms of benefit under the SERP Agreement, if the Executive is less
than fifty-five (55) years of age, the Executive shall be deemed to be at least
fifty-five (55) years of age on the date the Executive's employment with the
Company terminates, notwithstanding the Executive's actual age, if less.
(E) The Benefit Computation Base (as defined in the SERP
Agreement) shall be determined as if it were being calculated at the end of the
thirty-six (36) month period of service credited to the Executive under this
paragraph (ii) and as if during such thirty-six (36) additional month period the
Executive's annualized compensation was the same as such compensation for (I)
the Year during which the Executive's employment is terminated, or, (II)
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any Year before the Effective Date occurred, whichever is greater. The parties
hereto agree that (i) any bonus amount that would normally be payable in 2005,
but is accelerated into 2004 shall be taken into account in determining the
Executive's Benefit Computation Base under this paragraph (E) as if it had been
paid in 2005, (ii) no amounts payable pursuant to Sections 5, 6 and 7 shall be
taken into account in determining the Executive's benefits under the SERP
Agreement, and (iii) the SERP Agreement shall be amended accordingly, if
necessary.
(F) Any amendment to the Retirement Plan after the date hereof
shall be disregarded to the extent that the application of such amendment would
decrease the total amount of the benefits provided for in this paragraph (ii).
(G) The Executive shall be entitled to a lump sum distribution
of SERP Agreement benefits in all events, and the Company shall not be entitled
to require payment over a longer period. If the Executive elects a lump sum
payment (i) the actuarial equivalent benefit shall be determined in accordance
with the provisions of the Retirement Plan as in effect immediately prior to the
Effective Date, or as in effect on termination of the Executive's employment,
whichever creates the greater benefit, and (ii) the lump sum payment shall,
unless deferred in advance by the Executive pursuant to reasonable criteria
consistent with the requirements of the Code, be made within thirty (30) days
following the termination of the Executive's employment.
(H) An example of the SERP calculation described by this
Agreement will be appended hereto as Exhibit A as soon as reasonably practicable
following the Merger Agreement Date.
(y) Retention Period means a period commencing on the Effective Date and
ending on the third (3rd) anniversary of the date on which the Effective Date
occurs.
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(z) Retirement means a termination of the Executive's employment on
account of resignation by the Executive at or after age sixty-two and one-half
(62.5), other than a resignation for Good Reason.
(aa) Retirement Plan means the Banknorth Group, Inc. Retirement Plan, as
amended and in effect from time to time and any successor plan.
(bb) SERP Agreement means either (i) the Supplemental Retirement Agreement
between the Executive and the Company or (ii) if there is no Supplemental
Retirement Agreement between the Executive and the Company, the Banknorth Group,
Inc. Supplemental Retirement Plan, as amended.
(cc) Year means a calendar year unless otherwise specifically provided.
(dd) 401(k) Plan means the Banknorth Group, Inc. 401(k) Plan dated January
1, 2001, as amended, or any successor plan.
2. Term of Agreement.
This Agreement shall begin on the Effective Date and shall terminate on
the third anniversary of such date. If the Effective Date does not occur, this
Agreement shall be null and void ab initio.
3. Duties.
During the Retention Period, the Executive shall serve the Company in such
capacities and positions as may be assigned by the Company consistent with the
Executive's capacities and positions immediately prior to the Effective Date and
shall devote the Executive's best efforts and all of the Executive's business
time, attention and skill to the business and affairs of the Company, as such
business and affairs now exist and as they may hereafter be conducted.
4. Compensation.
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During the Retention Period, the Executive shall be compensated by the
Company as follows:
(a) the Executive shall receive, at such intervals and in accordance with
such standard policies of the Company from time to time, an annual base salary
not less than the Executive's annual base salary as in effect immediately prior
to the Effective Date, subject to adjustment as hereinafter provided, and shall
be entitled to such increases in Executive's base salary, if any, as may be
determined from time to time in the sole discretion of the Board, provided that
in no event may the Executive's annual base salary be decreased;
(b) the Executive shall be included in all plans providing incentive
compensation to executives, including but not limited to bonus, deferred
compensation, annual or other incentive compensation, supplemental pension,
stock ownership, stock option, stock appreciation, stock bonus and similar or
comparable plans as any such plans are extended by the Company from time to time
to senior corporate officers, key employees and other employees of comparable
status, provided that in no event shall the Executive's incentive compensation
opportunities be less favorable than the Executive's incentive compensation
opportunities immediately prior to the Effective Date;
(c) the Executive shall be reimbursed, at such intervals and in accordance
with such standard policies as may be in effect on the Effective Date, for any
and all monies advanced in connection with the Executive's employment for
reasonable and necessary expenses incurred by the Executive on behalf of the
Company, including travel expenses;
(d) the Executive shall enjoy the fringe benefits normally afforded to the
Company's executive officers. Such fringe benefits may vary from those in effect
immediately prior to the
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Effective Date, provided that such fringe benefits taken as a whole are
substantially comparable in all material respects to those in effect immediately
prior to such date;
(e) the Executive shall be allowed to participate, on the same basis as
applicable to other employees of comparable status and position, in any and all
plans, programs or arrangements covering employee benefits or fringe benefits,
including but not limited to the following: group medical insurance,
hospitalization benefits, disability benefits, medical benefits, dental
benefits, pension benefits, profit sharing and stock bonus plans, but excluding
severance and any similar plans, programs or arrangements, and, in any event,
such plans, programs or arrangements shall be no less favorable, in the
aggregate, than those in effect as of immediately prior to the Effective Date;
(f) the Executive shall receive annually not less than the amount of paid
vacation and not fewer than the number of paid holidays received annually
immediately prior to the Effective Date or, if greater, available annually to
other employees of comparable status and position with the Company; and
(g) notwithstanding the terms and conditions of the pre-Merger Options
(whether set forth in any option plan or option agreement), the transactions
contemplated by the Merger Agreement shall be deemed not to constitute a change
of control under the applicable plan or agreement, and, as a consequence, none
of the pre-Merger Options shall vest and become exercisable directly as a result
of the transactions contemplated by the Merger Agreement.
During the Retention Period, the Board of Directors of the Company, or an
appropriate committee thereof, will consider and appraise, at least annually,
the contributions of the Executive to the Company's operating efficiency,
growth, production and profits and, in accordance with past practice, due
consideration shall be given to the upward adjustment of the
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Executive's compensation rate, at least annually, commensurate with increases
generally given to other senior corporate officers and key employees and as the
scope of the Executive's duties expands.
5. Initial Payment and Retention Amount.
(a) Initial Payment. Within ten (10) business days after the Effective
Date, the Executive shall be paid any unpaid portion of a pro-rata Long Term
Incentive Award in an amount determined as described in Section 5 of the EIP.
(b) Retention Amount. Subject to the provisions of Section 6 and in
consideration for the Executive's agreement to remain employed by the Company
and to abide by the provisions of Sections 8(a) and 8(b) hereof, within ten (10)
business days following the third (3rd) anniversary of the Effective Date,
provided that the Executive has continuously been in the employ of the Company
from the Effective Date through such anniversary date, the Executive shall be
paid, or be credited with, as the case may be, the Retention Amount.
6. Termination of Employment.
Any termination by the Company or the Executive of the Executive's
employment during the Retention Period shall be communicated by written Notice
of Termination to the Executive if such notice is delivered by the Company, and
to the Company if such notice is delivered by the Executive. Any payments made
under this Section 6, other than due to death, shall be contingent on the
Executive's prior execution and non-revocation of a mutual release substantially
in the form attached hereto as Exhibit B; provided, however, that if the Company
refuses to execute such mutual release, the Executive's obligation to execute
and not revoke the release as a precondition to receiving severance benefits
shall terminate. The Notice of Termination shall comply with the requirements of
Section 18 below.
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(a) Termination for Disability Prior to the End of the Retention Period.
If during the Retention Period, the Executive's employment is terminated on
account of the Executive's Disability, the Executive shall receive any Accrued
Benefits, the Prorated Bonus, and any unpaid Retention Amount, and shall remain
eligible for all benefits as provided pursuant to the terms of any long-term
disability programs of the Company in effect at the time of such termination. In
addition, the pre-Merger Options shall become immediately vested and exercisable
(to the extent not previously vested and exercisable) and shall remain
exercisable for the period provided under the applicable option agreement.
(b) Termination due to the Executive's Death or Retirement Prior to the
End of the Retention Period. If, during the Retention Period, the Executive's
employment is terminated on account of the Executive's death or Retirement, the
Executive, (or the Executive's estate or designated beneficiary (or
beneficiaries), as applicable), shall receive all the Executive's Accrued
Benefits, the Prorated Bonus, and any unpaid Retention Amount. In addition, the
pre-Merger Options shall become immediately vested and exercisable (to the
extent not previously vested and exercisable) and shall remain exercisable for
the period provided under the applicable option agreement.
(c) Voluntary Termination or Termination for Cause Prior to the End of the
Retention Period. If, during the Retention Period, (i) the Executive shall
terminate employment with the Company other than for Good Reason, or (ii) the
Executive's employment is terminated for Cause, the Executive shall receive from
the Company only the Accrued Benefits.
(d) Termination by the Company Without Cause or by the Executive for Good
Reason Prior to the End of the Retention Period. If, during the Retention
Period, the Executive's
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employment with the Company is terminated by the Company other than for Cause,
or by the Executive for Good Reason, then:
(i) the Executive shall receive from the Company the Accrued
Benefits, the Prorated Bonus, and any unpaid Retention Amount, which shall
be paid within ten (10) days after the date of termination of the
Executive's employment; and
(ii) the pre-Merger Options shall become immediately vested and
exercisable (to the extent not previously vested and exercisable) and
shall remain exercisable for the period provided under the applicable
option agreement; and
(iii) if such termination takes place following a Change of Control
that occurs after the Effective Date, any other grants of equity-based
compensation awards from Toledo or the Company shall become immediately
vested and exercisable (to the extent not previously vested and
exercisable) and, if applicable, shall remain exercisable for the period
provided under the applicable award agreement; and
(iv) the Executive shall continue to be covered at the expense of
the Company by the same or equivalent hospital, medical, dental, accident,
disability and life insurance coverage as in effect for the Executive
immediately prior to termination of the Executive's employment, until the
earlier of (I) thirty-six (36) months following termination of employment,
or (II) the date the Executive has commenced new employment and has
thereby become eligible for comparable benefits; provided that, with
respect to any of the coverages described above, if such coverage is
provided through an insurance policy with an insurance company
unaffiliated with the Company and if under the terms of the applicable
policy, it is not possible to provide continued coverage (or if continued
coverage under such policy would increase the Company's cost allocable to
the
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Executive by more than one hundred percent (100%)), then the Company shall
pay the Executive a lump sum cash amount, no later than thirty (30) days
following termination of employment an amount equal to twice the aggregate
allocable cost of such coverage as applicable immediately prior to
termination of employment, such payment to be made without any discount
for present value (the "Medical Benefits").
(e) Termination After the Retention Period.
(i) If, after the Retention Period, the Executive's employment with
the Company is terminated by the Company other than for cause or by the
Executive for good reason, each as defined pursuant to the Company's
then-applicable severance program for its executives, the Executive shall
receive the Post-Retention Period Severance.
(ii) In addition, in the event that the Executive ceases to be
employed by the Company for any reason at or following the end of the
Retention Period (other than by reason of a termination of the Executive's
employment by the Company for Cause), the Executive shall be entitled to
the Medical Benefits.
7. Certain Supplemental Payments by the Company.
(a) In the event it is determined that part or all of the compensation and
benefits to be paid to the Executive, whether or not payable hereunder, (i)
constitute "parachute payments" under Section 280G of the Code (the "Payments"),
and (ii) exceed one hundred and five percent (105%) of three (3) times the
Executive's Base Amount, the Company, on or before the date for payment of such
excise tax, shall pay to or on behalf of the Executive, in lump sum, an amount
(the "Gross-Up Amount") such that, after payment of all federal, state and local
income tax and any additional excise tax under Section 4999 of the Code in
respect of the Gross-Up Amount payment, the Executive will be fully reimbursed
for the amount of such excise tax. If the
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Payments equal three (3) times the Executive's Base Amount or exceed three (3)
times the Executive's Base Amount, but by an amount less than five percent (5%)
of three (3) times the Base Amount, such payments shall be reduced by the least
amount necessary to bring such Payments below three (3) times the Executive's
Base Amount.
(b) The determination of the Parachute Amount, the Base Amount and the
Gross-Up Amount, as well as any other calculations necessary to implement this
Section 7 shall be made by KPMG LLP, and subject to the review and reasonable
approval of Ernst & Young LLP, unless the Executive and the Company agree
otherwise. The accounting firm's fee shall be paid by the Company.
(c) As promptly as practicable following such determination and the
elections hereunder, the Company shall pay to or distribute to or for the
benefit of the Executive such amounts as are then due to the Executive under
this Agreement and shall promptly pay to or distribute for the benefit of the
Executive in the future such amounts as become due to the Executive under this
Agreement.
(d) As a result of the uncertainty in the application of Section 280G of
the Code at the time of an initial determination hereunder, it is possible that
payments will not have been made by the Company which should have been made
under clause (a) of this Section 7 ("Underpayment"). In the event that there is
a final determination by the Internal Revenue Service, or a final determination
by a court of competent jurisdiction, that an Underpayment has been made and the
Executive thereafter is required to make any payment of an excise tax, income
tax, any interest or penalty, the accounting or benefits consulting firm
selected under clause (b) above shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive. If
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and to the extent that the Executive receives any tax refund from the Internal
Revenue Service that is attributable to payments by the Company pursuant to this
Section 7 of amounts in excess of the actual Gross-Up Amount as finally
determined by the Internal Revenue Service or a court of competent jurisdiction
("Overpayment"), the Executive shall promptly pay to the Company the amount of
such refund that is attributable to the Overpayment (together with any interest
paid or credited thereon after taxes applicable thereto); provided, however, the
Executive shall not have any obligation to pay the Company any amount pursuant
to this Section 7(d) if and to the extent that any such obligation would cause
the arrangement to be treated as a loan or extension of credit prohibited by
applicable law.
8. Further Obligations of the Executive.
(a) Confidentiality. During and following the Executive's employment by
the Company, the Executive shall hold in confidence and not directly or
indirectly disclose or use or copy or make lists of any confidential information
or proprietary data of the Company, except to the extent authorized in writing
by the Board or required by any court or administrative agency or otherwise by
applicable law, other than to an employee of the Company or a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of duties as an executive of the Company.
Confidential information shall not include any information known generally to
the public or any information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that of the
Company. All records, files, documents and materials or copies thereof relating
to the Company's business which the Executive shall prepare, or use, or come
into contact with, shall be and remain the sole property of the Company and
shall be promptly returned to the Company upon termination of employment with
the Company.
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(b) Non-Solicitation. During the Retention Period and, for a period of
three (3) years following the date the Executive ceases to be employed by the
Company (the "Restricted Period"), the Executive will not hire, or, directly or
indirectly, contact, approach or solicit for the purpose of offering employment
to or hiring (whether as an employee, consultant, agent, independent contractor
or otherwise), or encouraging to cease work with the Company or its Affiliates,
any person who is then employed or retained as a consultant by the Company, or
an Affiliate of the Company, other than on behalf of the Company or an Affiliate
of the Company, or was employed or retained as a consultant by the Company or an
Affiliate of the Company during the one (1) year period prior to such hiring,
solicitation or other act prohibited by this Section 8(b)(i).
(c) Certain Accelerations and Option Exercises. The Executive agrees that
the Company may, at its election, accelerate the payment of (x) the amount
described in Section 5(a) and/or (y) the annual bonus for 2004 to a date on or
before December 31, 2004 (it being understood that the amount payable under
Section 6(a) shall be based upon the date upon which the Effective Time occurs
and shall be reduced by any amount previously paid under this Section 8(c)), and
agrees to exercise, prior to December 31, 2004, any vested options to purchase
Berlin shares that would otherwise expire by their terms during calendar year
2004, 2005 and 2006 and that may reasonably be necessary, based on the advice of
KPMG LLP, and subject to the review and reasonable approval of Ernst & Young,
LLP, in order for the Executive to mitigate the effects of Section 280G of the
Code.
9. Equitable Relief.
Executive acknowledges and agrees that in the event of a breach by
Executive of any of the provisions of Sections 8(a) and 8(b) hereof, the Company
may suffer irreparable harm for
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which monetary damages alone will constitute an insufficient remedy.
Consequently, in the event of any such breach, the Company may, in addition to
other rights and remedies existing in its favor, apply to any court of law or
equity of competent jurisdiction for specific performance and/or injunctive or
other relief in order to enforce or prevent any violations of the provisions
hereof, in each case without the requirement of posting a bond or proving actual
damages.
10. Expenses and Interest.
If, during the Retention Period, a good faith dispute arises with respect
to the enforcement of the Executive's rights under this Agreement, or if any
legal or arbitration proceeding shall be brought in good faith to enforce or
interpret any provision contained herein, or to recover damages for breach
hereof, the Executive shall recover from the Company any reasonable attorney's
fees and necessary costs and disbursements incurred as a result of such dispute,
and prejudgment interest on any money judgment or arbitration award obtained by
the Executive calculated at the rate of interest announced by Banknorth N.A., or
any successor thereto, from time to time as its prime rate from the date that
payments to the Executive should have been made under this Agreement.
11. Payment Obligations Absolute.
The Company's obligation during and after the Retention Period to pay the
Executive the compensation and to make the arrangements provided herein shall be
absolute and unconditional and shall not be affected by any circumstances,
including, without limitation, any setoff, counterclaim, recoupment, defense or
other right which the Company may have against the Executive or anyone else. All
amounts payable by the Company hereunder shall be paid without notice or demand.
Each and every payment made hereunder by the Company shall be final and the
Company will not seek to recover all or any part of such payment from the
Executive or from
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whomsoever may be entitled thereto, for any reason whatever except as provided
in Section 7(d) above. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement, and such
amounts shall not be reduced whether or not the Executive obtains other
employment.
12. Successors.
(a) The Company will require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, expressly, absolutely and
unconditionally to 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 or assignment had taken place. Any failure of the Company to
obtain such agreement prior to the effectiveness of any such succession or
assignment shall be a material breach of this Agreement and shall entitle the
Executive to terminate the Executive's employment for Good Reason. As used in
this Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor or assign to all or substantially all of the business and/or assets as
aforesaid which executes and delivers the agreement provided for in this Section
12(a) or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law. Notwithstanding the foregoing, the Executive
hereby expressly agrees to the assumption of this Agreement by Berlin Delaware.
(b) This Agreement and all rights of the Executive shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries.
All amounts payable to the Executive hereunder shall be
21
paid, in the event of the Executive's death, to the Executive's estate, heirs
and representatives. Except as provided in this Section 12, no party may assign
this Agreement or any rights, interests, or obligations hereunder without the
prior written approval of the other party. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns pursuant to
Section 12(a). This Agreement shall not be terminated by the voluntary or
involuntary dissolution of the Company. In addition, Sections 6, 7, 8, 9, 10,
11, 13 and 17 shall survive the termination of this Agreement to the extent
necessary to give effect to the terms thereof.
13. Severability and Enforcement.
The provisions of this Agreement shall be regarded as divisible, and if
any such provisions or any part hereof are declared invalid or unenforceable by
a court of competent jurisdiction, the validity and enforceability of the
remainder of such provisions or parts hereof and the applicability thereof shall
not be affected thereby. It is expressly understood and agreed that although the
Executive and the Company consider the restrictions contained herein to be
reasonable, if a final judicial determination is made by a court of competent
jurisdiction that the time or territory or any other restriction contained in
this Agreement is an unenforceable restriction against Executive, the provisions
of this Agreement shall not be rendered void but shall be deemed amended to
apply as to such maximum time and territory and to such maximum extent as such
court may judicially determine or indicate to be enforceable. Alternatively, if
any court of competent jurisdiction finds that any restriction contained in this
Agreement is unenforceable, and such restriction cannot be amended so as to make
it enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
14. Amendment.
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This Agreement may not be amended or modified at any time except by a
written instrument executed by the Company and the Executive.
15. Withholding.
The Company shall be entitled to withhold from amounts to be paid to the
Executive hereunder any federal, state or local withholding or other taxes, or
charge which it is from time to time required to withhold. The Company shall be
entitled to rely on an opinion of counsel if any question as to the amount or
requirement of any such withholding shall arise.
16. Governing Law.
This Agreement and the rights and obligations hereunder shall be governed
by and construed in accordance with the laws of the State of Maine.
17. Arbitration.
Any dispute arising out of this Agreement other than with regard to
Sections 8(a) and 8(b) shall be determined by arbitration in the State of Maine
under the rules of the American Arbitration Association then in effect and
judgment upon any award pursuant to such arbitration may be enforced in any
court having jurisdiction thereof.
18. Notice.
Notices given pursuant to this Agreement shall be in writing and shall be
deemed given when received and, if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only postage
prepaid, to the Company at:
Banknorth Group, Inc.
X.X. Xxx 0000
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
23
or if to the Executive, at the address contained in the records of the Company,
or to such other address as the party to be notified shall have given to the
other.
19. No Waiver.
No waiver by any party at any time of any breach by another party of, or
compliance with, any condition or provision of this Agreement to be performed by
another party shall be deemed a waiver of similar or dissimilar provisions or
conditions at any time.
20. Headings.
The headings herein contained are for reference only and shall not affect
the meaning or interpretation of any provision of this Agreement.
21. Entire Agreement.
This Agreement constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof and supersedes any prior severance
agreements between the Executive and the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
BANKNORTH GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President, General
Counsel, Secretary and Clerk
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxx
25
EXHIBIT A
[EXAMPLE OF SERP CALCULATION]
EXHIBIT B
GENERAL RELEASE
1. Release of Claims by Executive.
(a) In consideration of the payments and benefits to be provided to
[________] ("Executive") pursuant to the retention agreement, dated as of
August___, 2004, to which Executive and Banknorth Group, Inc., a Maine
corporation (the "Company"), are parties (the "Retention Agreement"), the
sufficiency of which is acknowledged hereby, Executive, with the intention of
binding himself and his heirs, executors, administrators and assigns, does
hereby release, remise, acquit and forever discharge the Company,
Toronto-Dominion Bank ("TD") and each of their subsidiaries and affiliates (the
"Company Affiliated Group"), their present and former officers, directors,
executives, agents, attorneys and employees, and the successors, predecessors
and assigns of each of the foregoing (collectively, the "Company Released
Parties"), of and from any and all claims, actions, causes of action,
complaints, charges, demands, rights, damages, debts, sums of money, accounts,
financial obligations, suits, expenses, attorneys' fees and liabilities of
whatever kind or nature in law, equity or otherwise, whether accrued, absolute,
contingent, unliquidated or otherwise and whether now known or unknown,
suspected or unsuspected, which Executive, individually or as a member of a
class, now has, owns or holds, or has at any time heretofore had, owned or held,
against any Company Released Party in any capacity, including, without
limitation, any and all claims (i) arising out of or in any way connected with
Executive's service to any member of the Company Affiliated Group (or the
predecessors thereof) in any capacity, or the termination of such service in any
such capacity, (ii) for severance or vacation benefits, unpaid wages, salary or
incentive payments, (iii) for breach of contract, wrongful discharge, impairment
of economic opportunity, defamation, intentional infliction of emotional harm or
other tort, (iv) for any violation of applicable state and local labor and
employment laws (including, without limitation, all laws concerning unlawful and
unfair labor and employment practices) and (v) for employment discrimination
under any applicable federal, state or local statute, provision, order or
regulation, and including, without limitation, any claim under Title VII of the
Civil Rights Act of 1964 ("Title VII"), the Civil Rights Act of 1988, the Fair
Labor Standards Act, the Americans with Disabilities Act ("ADA"), the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Age
Discrimination in Employment Act ("ADEA") and any similar or analogous state
statute, excepting only:
(A) the rights of Executive under the Retention Agreement;
(B) the rights of Executive (i) relating to any stock options
and other equity-based awards held by Executive as of the date hereof
(collectively, the "Equity Arrangements") and (ii) as a stockholder of the
Company or its affiliates;
(C) the right of Executive to receive COBRA continuation
coverage in accordance with applicable law;
(D) rights to indemnification Executive may have under (i)
applicable corporate law, (ii) the by-laws or certificate of incorporation of
any Company Released Party, (iii) any other agreement between Executive and a
Company Released Party (iv) as an insured
under any director's and officer's liability insurance policy now or previously
in force or (v) Section 6.7 of the Agreement and Plan of Merger, dated as of
August 25, 2004, among the Company, Berlin Delaware, Inc., TD and Berlin Merger
Co.; and
(E) claims for benefits under any health, disability,
retirement, life insurance or other, similar "employee benefit plan" (within the
meaning of Section 3(3) of ERISA) of the Company Affiliated Group (the "Company
Benefit Plans").
(b) Executive acknowledges and agrees that the release of claims set
forth in this Section 1 is not to be construed in any way as an admission of any
liability whatsoever by any Company Released Party, any such liability being
expressly denied.
(c) The release of claims set forth in this Section 1 applies to any
relief no matter how called, including, without limitation, wages, back pay,
front pay, compensatory damages, liquidated damages, punitive damages, damages
for pain or suffering, costs, and attorney's fees and expenses.
(d) Executive specifically acknowledges that his acceptance of the
terms of the release of claims set forth in this Section 1 is, among other
things, a specific waiver of his rights, claims and causes of action under Title
VII, ADEA, ADA and any state or local law or regulation in respect of
discrimination of any kind.
(e) Executive shall have a period of 21 days to consider whether to
execute this General Release. To the extent Executive has executed this General
Release within less than twenty-one (21) days after its delivery to him, the
Executive hereby acknowledges that his decision to execute this General Release
prior to the expiration of such twenty-one (21) day period was entirely
voluntary. If Executive accepts the terms hereof and executes this General
Release, he may thereafter, for a period of 7 days following (and not including)
the date of execution, revoke this General Release. If no such revocation
occurs, this General Release shall become irrevocable in its entirety, and
binding and enforceable against Executive, on the day next following the day on
which the foregoing seven-day period has elapsed. Any revocation of this General
Release shall be deemed for all purposes a revocation of this General Release in
its entirety.
(f) Executive acknowledges and agrees that he has not, with respect
to any transaction or state of facts existing prior to the date hereof, filed
any complaints, charges or lawsuits against any Company Released Party with any
governmental agency, court or tribunal.
2. Effect of Unenforceability of Release. In addition to any other
remedy available to the Company hereunder, in the event that, as a result of a
challenge brought by an Employee Released Party (as defined below), the release
of claims set forth in Section 1 becomes null and void or is otherwise
determined not to be enforceable, then the Company's obligation to make any
additional payments or to provide any additional benefits under the Retention
Agreement shall immediately cease to be of any force and effect, and Executive
shall promptly return to the Company any payments or benefits the provision of
which by the Company was conditioned on the enforceability of this General
Release.
2
3. Release of Claims by the Company and TD.
(a) The Company and TD, with the intention of binding themselves and
their subsidiaries, affiliates, predecessors and successors and their directors
and officers (collectively, the "Releasing Entities"), do hereby release,
remise, acquit and forever discharge Executive and his heirs, estate, executors,
administrators and assigns (collectively, the "Employee Released Parties"), of
and from any and all claims, actions, causes of action, complaints, charges,
demands, rights, damages, debts, sums of money, accounts, financial obligations,
suits, expenses, attorneys' fees and liabilities of whatever kind or nature in
law, equity or otherwise, whether accrued, absolute, contingent, unliquidated or
otherwise and whether now known or unknown, suspected or unsuspected, which the
Company, TD and their subsidiaries, affiliates, predecessors and successors,
individually or as a member of a class, now have, own or hold, or have at any
time heretofore had, owned or held, against any Employee Released Party,
excepting only:
(A) rights of the Releasing Entities under this General
Release, the Retention Agreement, the Equity Arrangements and the Company
Benefit Plans; and
(B) rights of the Releasing Entities arising by reason of
Executive having committed a crime or an act or omission to act which
constitutes fraud, willful misconduct or gross negligence.
(b) The Releasing Entities acknowledge and agree that the release of
claims set forth in this Section 3 is not to be construed in any way as an
admission of any liability whatsoever by any Employee Released Party, any such
liability being expressly denied.
(c) The release of claims set forth in this Section 3 applies to any
relief no matter how called, including, without limitation, compensatory
damages, liquidated damages, punitive damages, damages for pain or suffering,
costs, and attorney's fees and expenses.
(d) Nothing herein shall be deemed, nor does anything contained
herein purport, to be a waiver of any right or claim or cause of action which by
law the Company is not permitted to waive.
(e) The Company acknowledges and agrees that it has not, with
respect to any transaction or state of facts existing prior to the date hereof,
filed any complaints, charges or lawsuits against any Employee Released Party
with any governmental agency, court or tribunal.
4. Nondisparagement. Executive agrees not to make any disparaging
statements about the Company Released Parties or the Company Affiliated Group's
business practices, operations or personnel policies and practices to any of the
Company Affiliated Group's customers, clients, competitors, suppliers,
directors, consultants, employees, former employees, or the press or other media
in any country. Similarly, the Company agrees to instruct its executive officers
and directors not to make any disparaging statement about the Executive or
Executive's performance of his duties and responsibilities while employed with
the Company Affiliated Group to any of the Company Affiliated Group's customers,
client's, competitors,
3
suppliers, directors, consultants, employees, former employees or the press or
other media in any country.
5. Counterparts. This General Release may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
6. Successors. This General Release shall be binding upon any and
all successors and assigns of Executive and the Company.
7. Governing Law. Except for issues or matters as to which federal
law is applicable, this General Release shall be construed in accordance with
and governed by the laws of the State of Maine.
IN WITNESS WHEREOF, this General Release has been signed by or on behalf of each
of the Parties, all as of _____________.
BANKNORTH GROUP, INC.
________________________________ ________________________________
[Executive] By:
Its:
Dated: _________________________ Dated: _________________________
THE TORONTO-DOMINION BANK
________________________________
By:
Its:
Dated: _________________________
4
