CHANGE-IN-CONTROL AGREEMENT
This Agreement is effective as of the 31st day of December, 1998, and
is by and between BANKNORTH GROUP, INC., a bank holding company, 000
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx, including its successors and assigns
(collectively hereinafter the "Company") and <> (hereinafter
"Executive").
WHEREAS, Executive is now serving as Vice Chairman of the Company
(hereinafter the "Position"); and
WHEREAS, the Company wishes to secure the future services of Executive
in the Position and assure Executive of the benefits of certain compensation
in the event of a Change-in-Control of the Company; and
WHEREAS, Executive is willing to enter into this Agreement for such
period and upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth and to induce Executive to remain in the employ of the
Company, the parties agree as follows:
1. Definitions; Term of Agreement.
1.1 A "Change-in-Control" shall be deemed to have occurred,
for all purposes of this Agreement, if any "Person", as defined in
Section 1.2, has acquired control of the Company. A Person has control
if:
(a) the Person directly or indirectly or acting through
one or more other Persons owns, controls, or has power to vote
25 percent or more of any class of voting securities of the
Company; or
(b) the Person controls in any manner the election of a
majority of the directors of the Company; or
(c) the Board of Directors of the Company determines
that the Person directly or indirectly exercises a controlling
influence over the management or policies of the Company.
If the Company shall undergo or participate in a reorganization, pursuant to
which there is no material change in the Persons owning, controlling or
having the power to vote any class of voting securities of the Company, such
a reorganization shall not be deemed a Change-in-Control.
1.2 A "Person" shall include a natural person, corporation, or
other entity. When two (2) or more Persons act as a partnership,
limited partnership, syndicate, or other group for the purpose of
acquiring, holding or disposing of the Company's common stock, such
partnership, syndicate or group shall be considered a Person.
Beneficial ownership shall be determined under the then current
provisions of Securities Exchange Act Rule 13d-3; Reg. Section
240.13d-3.
1.3 The "Multiple" is two.
1.4 The "Period" shall mean the period of time commencing on
the date of a Change-in-Control and ending on the second anniversary
thereof.
1.5 This Agreement shall remain in effect for the "Term"
extending from the date hereof through the end of the Period. This
Agreement may not be terminated by either party except at the
expiration of the Period or as otherwise expressly provided herein.
1.6 For all purposes of this Agreement, "Cause" shall mean
Executive's material failure to apply, in good faith, on a full-time
basis (allowing for usual vacations and sick leave) all of his skill
and experience to the performance of the duties and the
responsibilities of the Position, or the serious willful misconduct of
Executive including, but not limited to, the commission by Executive
of a felony or the perpetration by Executive of a common-law fraud or
other act of dishonesty upon, or the misappropriation or intentional
damage of the property or business of, the Company or any affiliate
thereof.
2. Change-in-Control.
2.1 If after a Change-in-Control and during the Period:
(a) The Executive's employment is terminated for any
reason other than as provided in Section 2.2 hereof, or
(b) Executive terminates his employment for Good Reason
as provided in Section 4.1 (either being an "Involuntary
Termination"),
Executive shall be entitled to receive such compensation and benefits as are
provided in Section 3.1. If the Executive's employment shall terminate
before the beginning or after the expiration of the Period, the Company
shall not be liable to the Executive for any compensation pursuant to this
Agreement. If during the Period the Executive's employment terminates as
provided in Section 2.2 hereof, then the Company shall not be liable to the
Executive for any compensation pursuant to this Agreement.
2.2 Notwithstanding any other provisions hereof, the Term
shall terminate and the Company shall have no liability to Executive
hereunder upon the occurrence of one or more of the following dates or
events:
(a) The date that the Executive delivers to the Company,
a written notice of his intention to retire, which notice once
delivered may not be withdrawn without the written consent of
the Company; or
(b) the death of Executive; or
(c) the commission of any act which would justify a
termination for Cause hereunder; or
(d) the Executive voluntarily terminates his employment
without Good Reason; or
(e) the Executive's "permanent disability" as determined
pursuant to the terms of the Company's long term disability
policy in effect at the date of the Change-in-Control.
2.3 The Company's obligations to Executive under Article 3
(regarding change-in-control compensation) are subject to Executive's
compliance with the provisions of Article 5 (regarding noncompetition
and confidentiality).
2.4 This Agreement is not an employment agreement between the
Company (or any affiliate of the Company) and the Executive. Nothing
in this Agreement shall serve to limit the rights of the Company (or
any affiliate of the Company) to terminate the employment of the
Executive prior to a Change-in-Control or after the Period without
incurring any liability under this Agreement.
3. Change-in-Control Compensation.
3.1 If Executive shall be entitled to receive compensation
under this Agreement by virtue of the termination of the Executive's
employment during the Period, then the Company shall pay to the
Executive in a single lump sum payment within 30 days of the
Executive's termination of employment the amounts set forth below,
provided that an amount need not be paid to the Executive in a single
lump sum payment if one of the following subparagraphs otherwise
expressly provides:
(a) Base Salary; Bonus. An amount equal to the Multiple
multiplied by the Executive's annual base salary at the date of
the Change-in-Control occurred, plus an amount equal to the
Multiple multiplied by the average annual cash bonus paid to the
Executive under the Company's short-term incentive compensation
plan for the three most recent consecutive calendar year periods
(or the period of Executive's participation in such plan if less
than three years) ending on the last day of the calendar year
preceding the year in which Executive's employment is
terminated.
(b) Defined Contribution Plans. For all qualified or
nonqualified defined contribution retirement plans or programs
sponsored by the Company in which the Executive participated at
the time of the Change-in-Control ("Defined Contribution
Plans"), an amount equal to the sum of
(i) the Multiple multiplied by the value of the
annual employer contributions being made to the Defined
Contribution Plans, plus
(ii) the value of the accrued accumulations for all
nonqualified Defined Contribution Plans at the date of the
termination of the Executive's employment, plus
(iii) the value of the unvested portion of the
accrued accumulations for all qualified Defined
Contribution Plans for accumulations and service up to the
date of the termination of the Executive's employment.
Such Defined Contribution Plans may include, without limitation, deferred
compensation plans, Section 401(k) plans, retirement plans and profit
sharing plans. The calculation of the amount due with respect to Defined
Contribution Plans shall be made based on the contributions being made at
the date of the Change-in-Control. For the purposes of calculating the
benefits described in subparagraphs (i) and (ii) above, the Executive shall
be assumed to be 100% vested in such Defined Contribution Plans.
(c) Defined Benefit Plans. For all qualified or
nonqualified defined benefit retirement plans or programs
sponsored by the Company in which the Executive participated at
the time of the Change-in-Control ("Defined Benefit Plans"), an
amount equal to the sum of
(i) the Multiple multiplied by the value of the
additional annual benefits accruing to any Defined Benefit
Plans, plus
(ii) the value of the accrued benefits for all
nonqualified Defined Benefit Plans at the date of the
termination of the Executive's employment, plus
(iii) the value of the unvested accrued benefits for
all qualified Defined Benefit Plans for accumulations and
service up to the date of the termination of the
Executive's employment.
Such Plans may include, without limitation, deferred compensation plans and
retirement plans. The value of the additional annual benefit accruing or the
then current value of benefits under any qualified or non-qualified Defined
Benefit Plan shall be such value as may be determined by the Company's
actuarial consultants; a determination by such consultants shall be final
and binding on all parties. For the purposes of calculating the benefits
described in subparagraphs (i) and (ii) above, the Executive shall be
assumed to be 100% vested in such Defined Benefit Plans.
(d) Health and Welfare Benefit Plans. An amount equal to
Multiple multiplied by the value of the annual employer
contributions being made to any employee welfare benefit plan,
whether qualified or non-qualified, in which the Executive
participated at the time of the Change-in-Control. Such plans
may include, without limitation, plans for hospital services,
medical services, major medical, dental, disability, survivor
benefits, or life insurance. The calculation of the amount due
under this subparagraph shall be made based on the contributions
being made at the date of the Change-in-Control. In lieu of any
part or all of such payment, if it is possible for the Executive
to continue participation in any or all of such plans and/or
programs, the Company shall (if the Executive so elects)
continue Executive's participation in such plans and/or programs
on the same terms and conditions as existed as of the date of
the Change-in-Control. The Executive shall make any such
election within ten business days after the Company shall have
notified Executive of those plans or programs available for
continued participation by the Executive.
(e) Stock-based Compensation Plans. The Executive shall,
as of the date of his termination of employment become fully
vested in any grants or awards received under any Company
sponsored stock-based compensation plans, specifically
including, without limitation, the Company's long-term incentive
plan. The Executive shall not be entitled to receive credit for
any grants or awards under any such plan that occur after the
date of the Executive's termination of employment. Benefits
shall otherwise be payable in accordance with the terms of each
such plan.
3.2 In the event that the Executive's right to receive
compensation under this Article 3 is triggered pursuant to Section 2.1
hereof, then the Executive shall be entitled to receive the full
amount of such compensation provided for in Section 3.1 hereof without
diminution, reduction or offset for any compensation or benefit
previously provided by the Company or an affiliate thereof to the
Executive during the Period, and without diminution, reduction or
offset for any compensation or benefit received by the Executive from
any other employer during the Period. The payments made to the
Executive under this Agreement are intended to be in settlement of all
obligations of the Company to the Executive, except those under
qualified retirement plans.
3.3 Notwithstanding the foregoing, the Company shall not pay
to Executive and Executive shall not be entitled to receive any
payment or benefit that would be treated as an "excess parachute
payment" as such phrase is defined under Section 280G of the Internal
Revenue Code of 1986 or any future amendment thereto or any
corresponding provision of any future United States revenue statute.
The Executive shall be entitled to select the specific payments or
benefits described in Section 3.1 that Executive wishes to forego or
reduce so that Executive shall not receive an excess parachute
payment.
4. Termination for Good Reason.
4.1 If Executive, by written notice to the Board of Directors
of the Company, terminates his employment at any time during the
Period for "Good Reason" (defined herein), the Executive shall be
entitled to receive all of the payments and benefits specified in
Section 3.1. For all purposes of this Agreement the Executive's
termination of his employment shall be for Good Reason if:
(a) the Executive experiences a material reduction in
position responsibility and authority;
(b) the Executive's compensation is reduced;
(c) the Executive's benefits are materially reduced,
unless such reduction is applicable to the Company employees
generally;
(d) the Executive's reporting relationships are
materially downgraded; or
(e) the Company requires the Executive to relocate more
than fifty miles from the Executive's then current principal
office.
5. Noncompetition and Confidentiality Provisions.
5.1 During the Term hereof, Executive shall not become an
officer, employee, agent, partner, or director of any business
enterprise in substantial direct competition (as defined below) with
the Company or with any subsidiary of the Company, as the business of
the Company, or any subsidiary of the Company may be constituted at
the time of termination of the Executive's employment (or at the time
immediately prior to the Change-in-Control if the employment
termination occurs during the Period).
5.2 Executive agrees that any information that an Executive
receives in the course of Executive's employment by the Company or any
affiliate thereof shall be deemed confidential and used only for the
furtherance of the Company's business and interests and for no other
purpose. Notwithstanding the foregoing, information shall not be
deemed confidential if it is otherwise publicly known through no
wrongful act of the Executive, is received by the Executive from a
third party without similar restrictions and without breach of this
Agreement, or is lawfully required to be disclosed to any governmental
agency or otherwise required to be disclosed by law. Upon the
termination of Executive's employment with the Company Executive
agrees to deliver to the Company all confidential information held by
Executive, regardless of the format in which such information may be
held, including without limitation electronic format, written, or
other recorded format.
5.3 For the purposes of Section 5.1, a business enterprise
with which Executive becomes associated as an officer, employee,
agent, partner or director, shall be considered in "substantial direct
competition" if, during a period when such competition is prohibited,
such business enterprise is a financial institution, a bank, or a bank
holding company, or is an affiliate of a bank holding company which is
engaged in any business within the scope of the business engaged in by
the Company or any affiliate of the Company at the time in question,
which business enterprise has an office or a branch located in any
county where the Company or any affiliate of the Company at the time
in question has an office or branch, or has an office or branch
located in any county contiguous to any such county.
5.4 In the event of a breach by Executive of the provisions of
Section 5.1 or 5.2 above, the Company shall be entitled to terminate
any payments or benefits provided to Executive hereunder and shall be
entitled to such other relief, including injunctive relief, as may be
permitted in law or equity. No injunctive relief shall be awarded to
the Company if, on or before the thirtieth (30th) day after the
Company first brings a proceeding requesting injunctive relief, the
Executive repays to the Company all amounts (without interest)
previously paid by the Company to Executive pursuant to this Agreement
and Executive agrees to the reversal of any other benefit or credit
received by Executive hereunder.
5.5 The provisions of Section 5.2 shall survive the Term of
this Agreement and continue indefinitely. The provisions of Section
5.1 shall apply only for the period described therein.
6. Notices.
All notices under this Agreement shall be in writing and shall be
deemed effective when delivered in person to Executive or to the Secretary
of the Company, or forty-eight (48) hours after deposit thereof in the U.S.
mails, postage prepaid, addressed, in the case of the Executive, to his last
known address as carried on the personnel records of the Company, and in the
case of the Company, to its corporate headquarters, attention of the
Secretary, or to such other address as the party to be notified may specify
by notice to the other party.
7. Prior Agreements.
This Agreement supersedes and replaces all prior agreements relating
to the subject matter hereof, specifically including but not limited to the
agreement dated December 21, 1994 between Banknorth Group and Executive.
8. Attorneys' Fees.
If Executive or the Company commences or becomes a party to litigation
for the purpose of enforcing any rights arising under this Agreement, the
prevailing party shall be entitled to reimbursement from the losing party
for all legal fees, costs and expenses incurred in connection with any such
litigation.
9. Successors and Assigns.
The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns
of the Company. The rights and obligations of Executive under this Agreement
shall inure to the benefit of and shall be binding upon Executive's heirs
and successors. Executive may not assign his rights and obligations under
this Agreement.
10. Severability.
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.
11. Construction.
This Agreement shall be construed under the laws of the State of
Vermont applicable to contracts executed and to be performed exclusively
within such state. Headings are for convenience only and shall not be
considered a part of the terms and provisions of the Agreement. This
Agreement may be modified only by a writing signed by the parties.
IN WITNESS WHEREOF, Banknorth Group, Inc. has caused this Agreement to
be executed by a duly authorized officer and Executive has hereunto set his
hand and seal as of the day and year first above written.
EXECUTIVE BANKNORTH GROUP, INC.
/s/ Xxxxxx X. Xxxxxx By:/s/ Xxxxxxx X. Xxxxxxxx
<> Its duly authorized agent
