EXHIBIT 10(a)
EXHIBIT 10(a)
EMPLOYMENT AGREEMENT
THIS AGREEMENT by and between Fleet Financial Group, Inc., a Rhode
Island corporation (the "Company"), and Xxxxxxx X. Xxxxxxx (the "Executive"),
dated as of the 14th day of March, 1999.
W I T N E S S E T H
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of March
14, 1999 (the "Merger Agreement"), among the Company and BankBoston Corporation,
a Massachusetts corporation ("BKB"), BKB shall, as of the Effective Time (as
defined in the Merger Agreement), merge with and into the Company, so that the
Company is the Surviving Corporation (as defined in the Merger Agreement); and
WHEREAS, the Executive is currently party to a severance agreement
entered into with BKB, dated as of June 25, 1998 (the "Prior Agreement"); and
WHEREAS, the Company wishes to provide for the orderly succession of
the management of the Company following the Effective Time; and
WHEREAS, the Company further wishes to provide for the employment by
the Company of the Executive, and the Executive wishes to serve the Company, in
the capacities and on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, it is hereby agreed as follows:
1. EMPLOYMENT PERIOD. The Company shall employ the Executive, and the
Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for an initial period (the "Initial Period"), a second period (the
"Interim Period"), and a third period (the "Final Period") (the Initial Period,
the Interim Period and the Final Period are hereinafter collectively referred to
as the "Employment Period"). The Initial Period shall commence on the date (the
"Effective Date") on which occurs the Effective Time and end on (a) January 1,
2002; or (b) such earlier date as the Chief Executive Officer of the Company as
of the date
hereof (the "Initial CEO") ceases to be Chief Executive Officer of the Company
for any reason. The Interim Period shall begin at the end of the Initial Period
and end on the first anniversary of the end of the Initial Period or such
earlier date as the Chairman of the Board of Directors of the Company (the
"Board") as of the date hereof ceases to be Chairman of the Board for any
reason. The Final Period shall begin at the end of the Interim Period and end on
January 1, 2003 or, if earlier, upon the termination of the Executive's
employment hereunder (as of the Date of Termination, as defined in Section
4(d)). This Agreement shall be null and void if the Effective Time does not
occur.
2. POSITION AND DUTIES. (a) During the Initial Period, the Executive
shall serve as the President and Chief Operating Officer of the Company. During
the Interim Period, the Executive shall serve as the Chief Executive Officer of
the Company and during the Final Period the Executive shall serve as both the
Chief Executive Officer of the Company and as Chairman of the Board; in each
case with such duties and responsibilities as are customarily assigned to such
positions, and such other duties and responsibilities not inconsistent therewith
as may from time to time be assigned to him by the Board. The Board shall
appoint the Executive to the positions specified above at the times specified
above throughout the Employment Period. During the Employment Period, the
Company shall cause the Executive to be included in the slate of persons
nominated to serve as directors on the Board and shall use its best efforts
(including, without limitation, the solicitation of proxies) to have the
Executive elected and reelected to the Board for the duration of the Employment
Period. The Executive shall be a member of the Company's Executive Committee at
all times during the Employment Period.
(b) During the Employment Period, and excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive shall devote
reasonable attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive under this Agreement, use the
Executive's reasonable best efforts to carry out such responsibilities
faithfully and efficiently. It shall not be considered a violation of the
foregoing for the Executive to serve on corporate, industry, civic or charitable
boards or committees, so long as such activities do not significantly interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement, provided that the Executive may
continue to participate and engage in activities not associated with the Company
consistent with the Executive's past practices at BKB.
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(c) The Company's headquarters shall be located in Boston,
Massachusetts, and the Executive shall be based and reside in the general
area of Boston, except for such reasonable travel obligations as do not
materially exceed the Executive's travel obligations immediately prior to the
Effective Date.
(d) Effective as of the Effective Date, the Company and the Executive
shall enter into an agreement concerning the Executive's rights and duties in
the event of a "change in control" of the Company, which shall be the same in
form and substance as that of the Initial CEO. Any benefits to which the
Executive becomes entitled under such agreement shall not be in addition to, but
shall be reduced by, the Severance Payments, as defined in Section 6.1 of the
Prior Agreement and as referred to in Section 5(a)(i)(A).
3. COMPENSATION. The Executive's compensation during the Employment
Period shall be determined by the Board upon the recommendation of the committee
of the Board having responsibility for approving the compensation of senior
executives (the "Compensation Committee"), subject to the provisions of Sections
3(a)-(f).
(a) BASE SALARY. During the Initial Period and the Interim Period,
commencing on the Effective Date, the Executive shall receive an annual base
salary ("Annual Base Salary") at a rate of not less than 100% of the rate of
annual base salary paid to the Initial CEO. The Annual Base Salary shall be
payable in accordance with the Company's regular payroll practice for its
senior executives, as in effect from time to time. During the Employment Period,
the Annual Base Salary shall be reviewed by the Compensation Committee for
possible increase at least annually. Any increase in the Annual Base Salary
shall not limit or reduce any other obligation of the Company under this
Agreement. The Annual Base Salary shall not be reduced after any such increase,
and the term "Annual Base Salary" shall thereafter refer to the Annual Base
Salary as so increased.
(b) ANNUAL BONUS. With respect to each fiscal year ending during the
Initial Period, the Executive shall receive an annual bonus ("Annual Bonus") of
not less than 9/10 of the annual bonus earned by the Initial CEO with respect
that year. With respect to each fiscal year ending during the Interim Period,
the Executive shall receive such Annual Bonus as shall be determined by the
Board upon recommendation of the Compensation Committee, provided that such
Annual Bonus shall not be less than 10/9 of the annual bonus earned by the
Initial CEO with respect to such fiscal year. The Annual Bonus shall be payable
in accordance with
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the Company's regular payroll practice for its senior executives, as in effect
from time to time.
(c) OTHER INCENTIVE COMPENSATION. (i) During the Employment Period, the
Executive shall be eligible to participate in short-term incentive compensation
plans and long-term incentive compensation plans (the latter to consist of plans
offering stock options, restricted stock and/or other long-term incentive
compensation, as adopted and approved by the Board or the Compensation Committee
from time to time).
(ii) Without limiting the generality of the foregoing, as of the
Effective Date, the Company shall make an award to the Executive of 300,000
restricted shares (the "Restricted Stock Grant") of the Company's common stock
("Common Shares"). 75,000 of such restricted shares (the "Donated Shares"), less
the number of shares necessary to pay the Tax Amount (as defined hereinbelow),
shall be donated to the Xxxx and Xxxx Xxxxxxx Fund at The Old Colony Charitable
Foundation or such other charitable organization as the Executive may choose,
provided that such organization is qualified under Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"). Subject to the
provisions of Section 5 and subject to the attainment of the performance
criteria previously agreed upon, all restrictions with respect to the Restricted
Stock Grant shall lapse, with respect to one-sixth of the shares subject to such
grant (including one-sixth of the Donated Shares), at the close of the first
full fiscal quarter of the Company following the Effective Date; with respect to
one-third of the shares subject to such grant (including one-third of the
Donated Shares), on each of December 31, 2000 and December 2001; and with
respect to one-sixth of the shares subject to such grant (including one-sixth of
the Donated Shares), on December 31, 2002. For purposes of this Agreement, the
"Tax Amount" shall mean any federal, state and local income and employment taxes
imposed upon the Executive in connection with a donation hereunder, taking into
account any limitations on the deductibility of the donated amount under federal
income tax laws, and shall be determined by the independent auditor of BKB
immediately prior to the Effective Date (the "Auditor"). The Tax Amount shall be
withheld by the Company and paid to the appropriate tax authorities in
accordance with applicable law. If the Executive's employment shall be
terminated prior to the lapse of restrictions with respect to all or a
portion of the Common Shares subject to a Restricted Stock Grant, including
the Donated Shares (the "Unvested Shares"), the Unvested Shares shall be
forfeited if the termination of employment is by the Company for Cause or by
the Executive other than for Good Reason and shall become fully vested if the
termination of employment is for any
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other reason. Subject to the foregoing provisions of this Section 3(c)(ii), the
terms of the Restricted Stock Grant shall be consistent with the terms of the
BankBoston 1996 Long-Term Incentive Plan (the "BKB Stock Plan").
(iii) Without limiting the generality of the foregoing, as of the
Effective Date and as of each of the first two anniversaries thereof, the
Company shall make awards to the Executive of a nonqualified option, with an
initial term of 10 years, to purchase 300,000 Common Shares (the "Option
Grants"). Subject to the provisions of Section 5, each of the Option Grants
shall vest and become exercisable as determined by the Board of Directors of the
Company (or the compensation committee of the Board of Directors), provided that
at least one-third of the shares subject to each Option Grant shall vest and
become exercisable on each of the first three anniversaries of the date of
grant. Subject to the foregoing provisions of this Section 3(c)(iii), the terms
of the Option Grants shall be consistent with the terms of the BKB Stock Plan.
(iv) Prior to the date of grant of each of the Restricted Stock
Grants and Option Grants, the Company shall register, on a Form S-8 or other
appropriate form, the Common Shares subject to the Restricted Stock Grant
(including the Donated Shares) and the Option Grant.
(d) SERP. During the Employment Period, the Executive shall continue to
participate in BKB's supplemental retirement plans or any successor thereto or
substitute therefor, or, if more favorable to the Executive, in the
supplemental retirement plans in which the Initial CEO participates during
the Initial Period, with credit thereunder for his years of service with the
BKB, provided that the aggregate annual defined benefit retirement income
(including retirement income from tax-qualified defined benefit retirement
plans), expressed as a single life annuity, to which the Executive shall be
entitled upon his termination of employment with the Company for any reason
shall not be less than (but may be more than) $1.25 million, unreduced for
any reason (including early retirement). Upon the death of the Executive, if
his spouse survives him, his spouse shall be entitled to an aggregate annual
defined benefit retirement income for her life of not less than 75% of the
amount set forth in the immediately preceding sentence. The benefit provided
under this Section 3(d) (the "SERP Benefit") shall be distributed in the same
form as the benefits to which the Executive is entitled under the BankBoston
Cash Balance Retirement Plan or any successor thereto. This Section 3(d)
shall not expire or terminate upon the expiration or termination for any
reason of this Agreement and shall continue in full force and effect upon
such expiration or termination.
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(e) FRINGE BENEFITS. During the Employment Period, the Executive shall
be entitled to receive fringe benefits on a basis not less favorable than the
basis on which such benefits are provided to the Initial CEO during the Initial
Period. Without limiting the generality of the foregoing, during the Employment
Period, the Executive shall be provided with the use of a Company airplane and
Company automobile, with driver, on a basis no less favorable to the Executive
than provided to the Executive immediately prior to the Effective Date.
(f) OTHER BENEFITS. During the Employment Period, (i) the Executive
shall participate in all applicable savings and retirement plans, practices,
policies and programs of the Company on a basis not less favorable than the
basis on which such benefits are provided to the Initial CEO during the Initial
Period, and (ii) the Executive and/or the Executive's eligible dependents, as
the case may be, shall be eligible for participation in, and shall receive all
benefits under, all applicable welfare benefit plans, practices, policies and
programs provided by the Company, including, without limitation, medical,
prescription, dental, disability, salary continuance, employee life insurance,
group life insurance (but not split-dollar insurance), accidental death and
travel accident insurance plans and programs on the same basis and subject to
the same terms, conditions, cost-sharing requirements and the like as the
Initial CEO during the Initial Period.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The Executive's
employment shall terminate automatically upon the Executive's death. The Company
shall be entitled to terminate the Executive's employment because of the
Executive's Disability during the Employment Period. "Disability" means that (i)
the Executive has been unable, for the period specified in the Company's
disability plan for senior executives, but not less than a period of 180
consecutive business days, to perform the Executive's duties under this
Agreement, as a result of physical or mental illness or injury, and (ii) a
physician selected by the Company or its insurers, and acceptable to the
Executive or the Executive's legal representative, has determined that the
Executive is disabled within the meaning of the applicable disability plan for
senior executives. A termination of the Executive's employment by the Company
for Disability shall be communicated to the Executive by written notice, and
shall be effective on the 30th day after receipt of such notice by the Executive
(the "Disability Effective Date"), unless the Executive returns to full-time
performance of the Executive's duties before the Disability Effective Date.
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(b) TERMINATION BY THE COMPANY. (i) The Company may terminate the
Executive's employment for Cause or without Cause. "Cause" means (A) the
conviction of the Executive for the commission of a felony from which all final
appeals have been taken, or (B) willful gross misconduct by the Executive in
connection with his employment by the Company, in either case that results in
material and demonstrable financial harm to the Company. No act or failure to
act on the part of the Executive shall be considered "willful" unless it is
done, or omitted to be done, by the Executive in bad faith or without reasonable
belief that the Executive's action or omission was in the best interests of the
Company. Any act or failure to act that is based upon authority given pursuant
to a resolution duly adopted by the Board, or the advice of counsel for the
Company, shall be conclusively presumed to be done, or omitted to be done, by
the Executive in good faith and in the best interests of the Company. In the
event of a dispute concerning the application of this provision, no claim by the
Company that Cause exists shall be given effect unless the Company establishes
to the Board by clear and convincing evidence that Cause exists.
(ii) A termination of the Executive's employment for Cause shall
not be effective unless it is accomplished in accordance with the following
procedures. The Company shall give the Executive written notice ("Notice of
Termination for Cause") of its intention to terminate the Executive's employment
for Cause, setting forth in reasonable detail the specific conduct of the
Executive that it considers to constitute Cause and the specific provisions of
this Agreement on which it relies, and stating the date, time and place of the
Special Board Meeting for Cause. The "Special Board Meeting for Cause" means a
meeting of the Board called and held specifically and exclusively for the
purpose of considering the Executive's termination for Cause, that takes place
not less than twenty nor more than thirty business days after the Executive
receives the Notice of Termination for Cause. The Executive shall be given an
opportunity, together with counsel, to be heard at the Special Board Meeting for
Cause. The Executive's termination for Cause shall be effective when and if a
resolution is duly adopted at the Special Board Meeting for Cause by affirmative
vote of three-quarters of the entire membership of the Board stating that, in
the good faith opinion of the Board, the Executive is guilty of the conduct
described in the Notice of Termination for Cause and that such conduct
constitutes Cause under this Agreement.
(c) GOOD REASON. (i) The Executive may terminate employment for Good
Reason or without Good Reason. "Good Reason" means:
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A. the failure of the Company to appoint the Executive to the
position of Chief Executive Officer of the Company upon the expiration of
the Initial Period;
B. the failure of the Company to cause the Executive to be
elected to the Board or to be appointed to the Company's Executive
Committee;
C. the failure of the Executive to be appointed as Chairman
of the Board upon the expiration of the Interim Period;
D. any requirement by the Company that the Executive's
services be rendered primarily at a location or locations other than Boston,
Massachusetts;
E. the failure by the Company to enter into the agreement
prescribed in Section 2(d) of this Agreement;
F. the assignment to the Executive of any duties or
responsibilities inconsistent in any respect with those customarily
associated with the positions (including status, offices, titles and
reporting requirements) to be held by the Executive during the applicable
period pursuant to this Agreement, the appointment of any other Executive to
perform any of the duties or responsibilities customarily associated with
the positions to be held by the Executive during the applicable period
pursuant to this Agreement, or any other action by the Company that results
in a diminution or other material adverse change in the Executive's
position, authority, duties or responsibilities, other than an isolated,
insubstantial and inadvertent action that is not taken in bad faith and is
remedied by the Company promptly after receipt of notice thereof from the
Executive;
G. any failure by the Company to comply with any provision of
Section 3 of this Agreement, other than an isolated, insubstantial and
inadvertent failure that is not taken in bad faith and is remedied by the
Company promptly after receipt of notice thereof from the Executive;
H. any failure by the Company to comply with Section 10(c) of
this Agreement; or
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I. any other material breach of this Agreement by the Company
that is not remedied by the Company promptly after receipt of notice thereof
from the Executive.
(ii) For purposes of this Section 4(c), any good faith
determination of "Good Reason" made by the Executive shall be conclusive. A
termination of employment by the Executive for Good Reason shall be effectuated
by giving the Company written notice ("Notice of Termination for Good Reason")
of the termination, setting forth in reasonable detail the specific conduct of
the Company that constitutes Good Reason and the specific provision(s) of this
Agreement on which the Executive relies. A termination of employment by the
Executive for Good Reason shall be effective on the fifth business day following
the date when the Notice of Termination for Good Reason is given, unless the
notice sets forth a later date (which date shall in no event be later than 30
days after the notice is given).
(iii) The failure to set forth any fact or circumstance in a
Notice of Termination for Good Reason shall not constitute a waiver of the right
to assert, and shall not preclude the party giving notice from asserting, such
fact or circumstance in an attempt to enforce any right under or provision of
this Agreement.
(iv) A termination of the Executive's employment by the Executive
without Good Reason shall be effected by giving the Company written notice of
the termination.
(d) DATE OF TERMINATION. The "Date of Termination" means the date of
the Executive's death, the Disability Effective Date, or the date on which the
termination of the Executive's employment by the Company for Cause or without
Cause or by the Executive for Good Reason or without Good Reason is effective,
as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) OTHER THAN FOR
CAUSE; FOR GOOD REASON; DEATH OR DISABILITY. If, during the Employment Period,
the Company terminates the Executive's employment for Disability or any other
reason, other than Cause; or the Executive terminates employment for Good
Reason; or the Executive's employment is terminated by reason of his death; the
Company shall
(i) pay to the Executive (or, in the event of termination of
employment by reason of the Executive's death, as provided in Section 10(a)),
in a lump
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sum, in cash, within five business days after the Date of Termination, or as
otherwise provided in this Section 5(a)(i),
(A) the "Severance Payments" as defined in Section 6.1 of the
Prior Agreement (including without limitation payment to the Executive on
account of the items described in paragraph (C) of such Section 6.1),
representing the amounts and benefits to which the Executive would have been
entitled under the Prior Agreement, as determined by the Auditor no later
than 30 days after the execution of this Agreement, plus interest from the
Effective Date to the date of the payment of such Severance Payments, at an
annual rate equal to the "prime" rate as in effect on the Date of
Termination, compounded daily (the "New Severance Payment"), provided that
the Executive may elect to reduce the Severance Payments by the amount
described in paragraph (B) of Section 6.1 of the Prior Agreement and, in
lieu thereof, receive for a period of three years following the Date of
Termination the continuation of the benefits described in Section 3(f)(ii);
and
(B) the sum of the following amounts (the "Accrued
Obligations"): (1) any portion of the Executive's Annual Base Salary through
the Date of Termination that has not yet been paid; (2) an amount equal to
the product of (A) the maximum annual bonus that the Executive would have
been eligible to earn for the year during which such termination occurs, and
(B) a fraction, the numerator of which is the number of days in such year
through the Date of Termination, and the denominator of which is 365; and
(3) the SERP Benefit and all compensation and benefits payable to the
Executive under the terms of the Company's compensation and benefit plans,
programs or arrangements as in effect immediately prior to the Date of
Termination, provided that the form of the SERP Benefit shall be determined
pursuant to Section 3(d) (the "SERP Procedure") and the form of other
benefits described in this clause (B)(3) shall be determined in accordance
with the aforesaid plans, programs and arrangements; and
(ii) cause the Restricted Stock Grant, to the extent then unvested
or forfeitable, to become immediately and fully vested and the Option Grants, to
the extent then not exercisable, to become immediately and fully exercisable;
and for purposes of any post-termination exercise period associated with such
awards, consider the Executive to have remained employed through January 1,
2003; and
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(iii) if termination is by the Company other than for Cause or by
the Executive for Good Reason, at its expense, provide the Executive with
outplacement services suitable to the Executive's position for three years
following the Date of Termination or, if earlier, until the first acceptance by
the Executive of an offer of employment; and
(iv) if the Executive terminates his employment for the event of
Good Reason described in Section 4(c)(i)(A) or 4(c)(i)(C) or if the Company
terminates the Executive's employment other than for Cause prior to the date on
which the Executive is entitled pursuant to this Agreement to become Chairman
of the Board, pay to the Xxxx and Xxxx Xxxxxxx Fund at The Old Colony Charitable
Foundation or such other charitable organization as the Executive may choose,
provided that such organization is qualified under Section 501(c)(3) of the
Code, in a lump sum, in cash, within five business days after the Date of
Termination, $15,000,000, reduced by the Tax Amount (as defined in Section
3(c)), such Tax Amount to be determined by the Auditor and to be withheld by the
Company and paid to the appropriate tax authorities in accordance with
applicable law.
(b) BY THE EXECUTIVE OTHER THAN FOR GOOD REASON; UPON TERMINATION
FOLLOWING EXPIRATION OF THE AGREEMENT. If the Executive voluntarily terminates
employment, other than for Good Reason, during the Employment Period or if the
Executive's employment terminates for any reason after January 1, 2003, the
Company shall pay to the Executive (1) in a lump sum in cash within 30 days of
the Date of Termination, the New Severance Payment and any portion of the
Executive's Annual Base Salary through the Date of Termination that has not
been paid; and (2) the SERP Benefit in accordance with the SERP Procedure and
all compensation and benefits payable to the Executive under the terms of the
Company's compensation and benefit plans, programs or arrangements as in effect
immediately prior to the Date of Termination.
(c) BY THE COMPANY FOR CAUSE. If the Executive's employment is
terminated by the Company for Cause on or prior to January 1, 2003, the Company
shall pay to the Executive (1) any portion of the Executive's Annual Base Salary
through the Date of Termination that has not been paid; and (2) the SERP Benefit
in accordance with the SERP Procedure and all compensation and benefits payable
to the Executive under the terms of the Company's compensation and benefit
plans, program or arrangements as in effect immediately prior to the Date of
Termination.
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(d) EXCISE TAX PAYMENT. (i) In the event that any payment or benefit
received or to be received by the Executive pursuant to the terms of this
agreement (the "Contract Payments") or of any other plan, arrangement or
agreement of the Company (or any affiliate) (together with the Contract
Payments, the "Total Payments") would be subject to the excise tax (the "Excise
Tax") imposed by section 4999 of the Code as determined as provided below, then,
subject to the provisions of Section 5(d)(ii), the Company shall pay to the
Executive, at the time specified in Section 5(d)(iii) below, an additional
amount (the "Gross-Up Payment") such that the net amount retained by the
Executive, after deduction of the Excise Tax on Total Payments and any federal,
state and local income and employment taxes and the Excise Tax upon the Gross-Up
Payment, and any interest, penalties or additions to tax payable by the
Executive with respect thereto, shall be equal to the total present value (using
the applicable federal rate (as defined in section 1274(d) of the Code in such
calculation) of the Total Payments at the time such Total Payments are to be
made. For purposes of determining whether any of the Total Payments will be
subject to the Excise Tax and the amounts of such Excise Tax, (A) the total
amount of the Total Payments shall be treated as "parachute payments" within the
meaning of section 280G(b)(2) of the Code, and all "excess parachute payments"
within the meaning of section 280G(b)(1) of the Code shall be treated as subject
to the Excise Tax, except to the extent that, in the opinion of the Auditor,
such amount (in whole or in part) does not constitute a "parachute payment"
within the meaning of section 280G(b)(2) of the Code, or such "excess parachute
payments" (in whole or in part) are not subject to the Excise Tax, (B) the
amount of the Total Payments that shall be treated as subject to the Excise Tax
shall be equal to the lesser of (1) the total amount of the Total Payments or
(2) the amount of "excess parachute payments" within the meaning of section
280G(b)(1) of the Code (after applying clause (A) hereof), and (C) the value of
any noncash benefits or any deferred payment or benefit shall be determined by
the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of
the Code. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation applicable to individuals in the calendar year
in which the Gross-Up Payment is to be made and state and local income taxes at
the highest marginal rates of taxation applicable to individuals as are in
effect in the state and locality of the Executive's residence in the calendar
year in which the Gross-Up Payment is to be made, net of the maximum reduction
in federal income taxes that can be obtained from deduction of such state and
local taxes, taking into account any limitations applicable to individuals
subject to federal income tax at the highest marginal rate.
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(ii) In the event that, after giving effect to any
redeterminations described in Section 5(d)(iv), the sum of the Total Payments
and the Gross-Up Payment (in each case after deduction of the net amount of
federal, state and local income and employment taxes and the amount of Excise
Tax to which the Executive would be subject in respect of such Total Payments
and the Gross-Up Payment) does not equal or exceed 110% of the largest amount of
Total Payments that would result in no portion of the Total Payments being
subject to the Excise Tax (after deduction of the net amount of federal, state
and local income and employment taxes on such reduced Total Payments), then
Section 5(d)(i) shall not apply and, to the extent necessary to ensure that no
portion of the Total Payments is subject to the Excise Tax, the cash Contract
Payments shall first be reduced (if necessary, to zero), and the noncash
Contract Payments shall thereafter be reduced (if necessary, to zero); provided,
however, that the Executive may elect to have the noncash Contract Payments
reduced (or eliminated) prior to any reduction of the cash Contract Payments.
(iii) The Gross-Up Payments provided for in Section 5(d)(i) shall
be made upon the earlier of (i) ten days following termination of the
Executive's employment or (ii) ten days following the imposition upon the
Executive or payment by the Executive of any Excise Tax.
(iv) If it is established pursuant to a final determination of a
court or an Internal Revenue Service proceeding or the opinion of the Auditor
that the Excise Tax is less than the amount taken into account under Section
5(d)(i) , the Executive shall repay to the Company within thirty (30) days of
the Executive's receipt of notice of such final determination or opinion the
portion of the Gross-Up Payment attributable to such reduction (plus the portion
of the Gross-Up Payment attributable to the Excise Tax and federal, state and
local income and employment taxes imposed on the Gross-Up Payment being repaid
by the Executive if such repayment results in a reduction in Excise Tax or a
federal, state or local income or employment tax deduction) plus any interest
received by the Executive on the amount of such repayment. If it is established
pursuant to a final determination of a court or an Internal Revenue Service
proceeding or the opinion of the Auditor that the Excise Tax exceeds the amount
taken into account hereunder (including by reason of any payment the existence
or amount of which cannot be determined at the time of the Gross-Up Payment),
the Company shall make an additional Gross-Up Payment, plus any interest and
penalties, in respect of such excess within thirty (30) days of the Company's
receipt of notice of such final determination or opinion.
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(v) All fees and expenses of the Auditor incurred in connection
with this agreement shall be borne by the Company.
6. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies for which the Executive may qualify, nor shall anything in this
Agreement limit or otherwise affect such rights as the Executive may have under
any contract or agreement with the Company or any of its affiliated companies.
Vested benefits and other amounts that the Executive is otherwise entitled to
receive under any plan, policy, practice or program of, or any contract of
agreement with, the Company or any of its affiliated companies on or after the
Date of Termination shall be payable in accordance with the terms of each such
plan, policy, practice, program, contract or agreement, as the case may be,
except as explicitly modified by this Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in, and otherwise to perform its obligations under, this Agreement
shall not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action that the Company may have against the Executive or
others. 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, regardless of whether the Executive obtains other employment.
8. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies and
their respective businesses that the Executive obtains during the Executive's
employment by the Company or any of its affiliated companies and that is not
public knowledge (other than as a result of the Executive's violation of this
Section 8) ("Confidential Information"). The Executive shall not communicate,
divulge or disseminate Confidential Information at any time during or after the
Executive's employment with the Company, except with the prior written consent
of the Company or as otherwise required by law or legal process.
9. INDEMNIFICATION; ATTORNEYS' FEES. The Company shall pay or indemnify
the Executive to the full extent permitted by law and the by-laws of the Company
for all expenses, costs, liabilities and legal fees which the Executive may
incur in the discharge of his duties hereunder. The Company also agrees to pay,
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as incurred, to the fullest extent permitted by law, or indemnify Executive if
such payment is not legally permitted, for all legal fees and expenses that the
Executive may in good faith incur as a result of any contest (regardless of the
outcome) by the Company, the Executive or others of the validity or
enforceability of or liability under, or otherwise involving, any provision of
this Agreement, together with interest on any delayed payment at the applicable
federal rate provided for in Section 7872(f)(2)(A) of the Code.
10. SUCCESSORS. (a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "the Company" shall mean
both the Company as defined above and any such successor that assumes and agrees
to perform this Agreement, by operation of law or otherwise.
11. MISCELLANEOUS. (a) This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts,
without reference to its principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect. This Agreement may not be amended or modified except by a written
agreement executed by the parties hereto or their respective successors and
legal representatives.
(b) All notices and other communications under this Agreement shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
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If to the Executive:
Xxxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to the Company:
Fleet Financial Group, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
or to such other address as either party furnishes to the other in writing in
accordance with this Section 11(b). Notices and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the Company
may withhold from amounts payable under this Agreement all federal, state, local
and foreign taxes that are required to be withheld by applicable laws or
regulations.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provisions of, or to assert, any right under, this Agreement
(including, without limitation, the right of the Executive to terminate
employment for Good Reason pursuant to paragraph (c) of Section 4) shall not be
deemed to be a waiver of such provision or right or of any other provision of or
right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement
supersedes any other agreement, including the Prior Agreement (except to the
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extent the Prior Agreement is referenced in Section 5(a)(i)), between them
concerning the subject matter hereof.
(g) The rights and benefits of the Executive under this Agreement may
not be anticipated, assigned, alienated or subject to attachment, garnishment,
levy, execution or other legal or equitable process except as required by law.
Any attempt by the Executive to anticipate, alienate, assign, sell, transfer,
pledge, encumber or charge the same shall be void. Payments hereunder shall not
be considered assets of the Executive in the event of insolvency or bankruptcy.
(h) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
(i) The obligations of the Company and the Executive under Sections 5
(including without limitation Section 5(b)), 6, 7, 8, 9 and 10 (in addition to
those under Section 3(d)) shall survive the expiration or termination for any
reason of this Agreement.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization of its Board, the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.
FLEET FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Title: Executive Vice
President &
General Counsel
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
EXECUTIVE
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