EXHIBIT 10(d)
Exhibit 10(d)
EMPLOYMENT AGREEMENT
THIS AGREEMENT by and between Fleet Financial Group, Inc.,
a Rhode Island corporation (the "Company"), and Xxxxxxxx X. Xxxxxx (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"), between 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 employment by
the Company of the Executive, and the Executive wishes to serve the Company, 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 a period (the "Employment Period") commencing on the date
(the "Effective Date") on which occurs the Effective Time and ending 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 Employment Period, the
Executive shall serve as Vice Chairman of the Company, with responsibility for
investment management including management of the chief investment officer,
Fleet Investment Advisors, institutional investment, institutional sales,
retirement prod-
ucts, non-for-profits, regional investment policy, private banking, Columbia
Asset Management, Galaxy Funds and Quick & Xxxxxx, with such additional duties
and responsibilities as are customarily assigned to such position, and such
other duties and responsibilities not inconsistent therewith as may from time to
time be assigned to him by Chief Executive Officer of the Company.
(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.
(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 Chief Executive Officer of the Company
on the Effective Date. Any benefits to which the Executive becomes entitled
under such agreement shall not be in addition, 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) - (d).
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(a) BASE SALARY. During the Employment Period, commencing on
the Effective Date, the Executive shall receive an annual base salary ("Annual
Base Salary") at a rate of not less than $525,000. 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 1999, the Company shall pay
the Executive an annual bonus ("Annual Bonus") of not less than the highest
annual bonus paid to the Executive in respect of the three preceding years,
reduced by any amount paid to the Executive in respect of 1999 under the
BankBoston Performance Recognition Opportunity Plan. The Annual Bonus shall be
payable in accordance with 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, the Company shall grant to the Executive, as of the Effective Date,
100,000 restricted shares (the "Restricted Stock Grant") of the Company's common
stock ("Common Shares"). 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, 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, on each of December
31, 2000 and December 31, 2001; and with respect to one-sixth of the shares
subject to such grant, on December 31, 2002. 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 the Restricted Stock Grant (the
"Unvested Shares"), the Unvested Shares shall be forfeited if the termination of
employment is by the
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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 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) Prior to the date of grant of the Restricted
Stock Grant, the Company shall register, on a Form S-8 or other appropriate
form, the Common Shares subject to the Restricted Stock Grant.
(d) 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 provided to similarly situated senior executives of the Company; (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,
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 similarly situated senior executives of the Company; and (iii) the
Executive shall be entitled to receive fringe benefits on a basis not less
favorable than provided to similarly situated senior executive officers of the
Company. In particular, commencing on January 1, 2000, the Executive shall
become a participant in the Company's supplemental retirement plan(s) on a basis
no less favorable than similarly situated senior executives of the Company. The
Executive shall not be entitled to receive service credit for purposes of such
supplemental retirement plans for his service with BKB, provided that at any
given date (the "testing date") the benefits payable to the Executive thereunder
(together with any supplemental retirement benefits payable to the Executive
under the BKB supplemental retirement benefit plans) shall be no less, whether
stated as annual annuities or as present values, than the aggregate benefits
that the Executive would have been entitled to receive under the BKB
supplemental retirement plans as existing on the date of execution of this
Agreement if the Executive had continued to be a participant in said BKB plans
until the testing date.
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
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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.
(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 termina-
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tion 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:
A. the assignment to the Executive of any duties or
responsibilities inconsistent in any respect with those customarily
associated with the position (including status, offices, titles and
reporting requirements) to be held by the Executive during the
Employment 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;
B. 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;
C. any requirement by the Company that the
Executive's services be rendered primarily at a location or locations
other than Boston, Massachusetts;
D. any failure by the Company to comply with Section
10(c) of this Agreement; or
E. 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.
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(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 sum in cash, within five business days after the Date of Termination,
or as otherwise provided in this Section 5(a)(i),
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(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 (as defined in Section 5(d)) 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(d)(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)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
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
(iii) unless termination of employment is by reason of death,
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.
(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,
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during the Employment Period or if the Executive's employment terminates for any
reason following 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) 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) 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.
(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 Section5(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 independent
auditor of BKB immediately prior to the Effective Date (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)
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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.
(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.
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(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.
(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
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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, 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
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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:
If to the Executive:
Xxxxxxxx X. Xxxxxx
00 Xxxxx Xxxx Xxxx
Xxxxxxx, 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.
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(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 extent the Prior Agreement is referenced in Section 5(a)(i)
hereof) 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 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
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Title: Executive Vice President
& General Counsel
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/s/ Xxxxxxxx X. Xxxxxx
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EXECUTIVE
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