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Exhibit
10(nn)
AGREEMENT
AGREEMENT by and between
FLEET BOSTON CORPORATION, a Rhode Island corporation (the
“Company”), and [ ] (the
“Executive”), dated as of October 1, 1999.
WHEREAS, the Board of
Directors of the Company (the “Board”) has determined
that it is in the best interests of the Company and its
stockholders to assure that the Company will have the continued
dedication of the Executive, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined in Section
2) of the Company. The Board believes it is imperative to diminish
the inevitable distraction of the Executive by virtue of the
personal uncertainties and risks created by a pending or threatened
Change of Control and to encourage the Executive’s full
attention and dedication to the Company currently and in the event
of any threatened or pending Change of Control, and to provide the
Executive with compensation and benefits arrangements upon a Change
of Control which ensure that the compensation and benefits
expectations of the Executive will be satisfied and which are
competitive with those of other bank holding companies. Therefore,
in order to accomplish these objectives, the Board caused the
Company to enter into an Agreement with the Executive.
NOW, THEREFORE, IT IS HEREBY
AGREED AS FOLLOWS:
1. Certain
Definitions.
(a) The “Effective
Date” shall be the first date during the “Change of
Control Period” (as defined in Section 1(b)) on which a
Change of Control occurs. Anything in this Agreement to the
contrary notwithstanding, if the Executive’s employment with
the Company is terminated or the Executive ceases to be an officer
of the Company prior to the date on which a Change of Control
occurs, and it is reasonably demonstrated that such termination of
employment (1) was at the request of a third party who has taken
steps reasonably calculated to effect the Change of Control or (2)
otherwise arose in connection with or anticipation of the Change of
Control, then for all purposes of this Agreement the
“Effective Date” shall mean the date immediately prior
to the date of such termination of employment.
(b) The “Change of
Control Period” is the period commencing on the date hereof
and ending on the earlier to occur of (x) the third anniversary of
such date and (y) the Executive’s normal retirement under the
Fleet Boston Corporation Pension Plan or similar BankBoston Plan in
which the Executive is a participant (“Normal Retirement
Date”); provided, however, that commencing on the date one
year after the date hereof, and on each annual anniversary of such
date (such date and each annual anniversary thereof is hereinafter
referred to as the “Renewal Date”), the Change of
Control Period shall be automatically extended without any further
action by the Company or the Executive so as to terminate three
years from such Renewal Date; provided, however, that if either the
Company or the Executive shall give notice in writing to the other,
120 days prior to the Renewal Date, stating that the Change of
Control Period shall not be extended, then the Change of Control
Period shall expire three years from the date hereof, or if later,
three years from the last effective Renewal Date.
2. Change of Control. For the
purpose of this Agreement, a “Change of Control” shall
mean:
(a) The acquisition, other
than from the Company, by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”))
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the then
outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”); provided, however,
that any acquisition by the Company or its subsidiaries, or any
employee benefit plan (or related trust) of the Company or its
subsidiaries, of 25% or more of the Outstanding Company Common
Stock shall not constitute a Change of Control; and provided,
further that any acquisition by a corporation with respect to
which, following such acquisition, more than 50% of the then
outstanding shares of common stock of such corporation is then
beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners
of the Outstanding Company Common Stock immediately prior to such
acquisition in substantially the same proportion as their ownership
immediately prior to such acquisition of the Outstanding Company
Common Stock, shall not constitute a Change of Control;
or
(b) Individuals who, as of
the date of this Agreement, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board, provided that any individual
becoming a director subsequent to the date of this Agreement whose
election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of the Directors of the
Company (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act); or
(c) Consummation of a
reorganization, merger, consolidation, sale or other disposition of
all or substantially all of the assets of the Company (a
“Business Combination”), in each case, with respect to
which all or substantially all of the individuals and entities who
were the beneficial owners of the Outstanding Company Common Stock
immediately prior to such Business Combination do not, following
such Business Combination, beneficially own, directly or
indirectly, more than 50% of the then outstanding shares of common
stock of the corporation resulting from such a Business Combination
(including, without limitation, a corporation which as a result of
such transaction owns the Company or all or substantially all of
the Company’s assets either directly or through one or more
subsidiaries).
(d) Approval by the
stockholders of the Company of a complete liquidation or
dissolution of the Company.
Anything in this Agreement to
the contrary notwithstanding, if an event that would, but for this
paragraph, constitute a Change of Control results from or arises
out of a purchase or other acquisition of the Company, directly or
indirectly, by a corporation or other entity in which the Executive
has a greater than ten percent (10%) direct or indirect equity
interest, such event shall not constitute a Change of
Control.
3. Employment Period. Subject
to the terms and conditions hereof, the Company hereby agrees to
continue the Executive in its employ, and the Executive hereby
agrees to remain
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in the employ of the Company, for the
period commencing on the Effective Date and ending on the earlier
to occur of (x) the last day of the twenty-fourth month following
the month in which the Effective Date occurs, and (y) the
Executive’s Normal Retirement Date (the “Employment
Period”).
4. Terms of
Employment.
(a) Position and
Duties.
(i) During the Employment
Period, (A) the Executive’s position (including status,
offices, titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and
assigned at any time during the 90-day period immediately preceding
the Effective Date and (B) the Executive’s services shall be
performed at the location where the Executive was employed
immediately preceding the Effective Date or any office or location
less than 35 miles from such location.
(ii) During the Employment
Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to 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 hereunder,
to use the Executive’s reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the
Employment Period it shall not be a violation of this Agreement for
the Executive to (A) serve on corporate, civic or charitable boards
or committees, (B) deliver lectures, fulfill speaking engagements
or teach at educational institutions and (C) manage personal
investments, 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. It is expressly understood and agreed that to the
extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of
such activities (or the conduct of activities similar in nature and
scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the
Executive’s responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the
Employment Period, the Executive shall receive an annual base
salary (“Annual Base Salary”), which shall be paid at a
bi-weekly rate, at least equal to twelve times the highest monthly
base salary paid or payable to the Executive by the Company and its
affiliated companies in respect of the twelve-month period
immediately preceding the month in which the Effective Date occurs.
During the Employment Period, the Annual Base Salary shall be
reviewed at least annually and shall be increased at any time and
from time to time as shall be substantially consistent with
increases in base salary awarded in the ordinary course of business
to other peer executives of the Company and its affiliated
companies. Any increase in Annual Base Salary shall not serve to
limit or reduce any other obligation to the Executive under this
Agreement. Annual Base Salary shall not be reduced after any such
increase and the term
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Annual Base Salary as
utilized in this Agreement shall refer to Annual Base Salary as so
increased. As used in this Agreement, the term “affiliated
companies” includes any company controlled by, controlling or
under common control with the Company.
(ii) Annual Bonus. In
addition to Annual Base Salary, the Executive shall be awarded, for
each fiscal year during the Employment Period, an annual bonus (the
“Annual Bonus”) in cash at least equal to the average
annualized (for any fiscal year consisting of less than twelve full
months or with respect to which the Executive has been employed by
the Company for less than twelve full months) bonus (the
“Average Annual Bonus”) paid or payable to the
Executive by the Company and its affiliated companies in respect of
the three fiscal years immediately preceding the fiscal year in
which the Effective Date occurs, or such shorter period of the
Executive’s employment with the Company. Each such Annual
Bonus shall be paid no later than the end of the third month of the
fiscal year next following the fiscal year for which the Annual
Bonus is awarded, unless the Executive shall elect to defer the
receipt of such Annual Bonus pursuant to deferral plans of the
Company.
(iii) Incentive, Savings and
Retirement Plans. In addition to Annual Base Salary and Annual
Bonus payable as hereinabove provided, the Executive shall be
entitled to participate during the Employment Period in all
incentive, savings and retirement plans, practices, policies and
programs applicable to other peer executives of the Company and its
affiliated companies, but in no event shall such plans, practices,
policies and programs provide the Executive with incentive, savings
and retirement benefits opportunities, in each case, less
favorable, in the aggregate, than the most favorable of those
provided by the Company and its affiliated companies for the
Executive under such plans, practices, policies and programs as in
effect at any time during the one-year period immediately preceding
the Effective Date.
(iv) Welfare Benefit Plans.
During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the
Company and its affiliated companies (including, without
limitation, medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) and applicable to other peer
executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide
benefits which are less favorable, in the aggregate, than the most
favorable of such plans, practices, policies and programs in effect
at any time during the one-year period immediately preceding the
Effective Date.
(v) Expenses. During the
Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the most favorable policies, practices
and procedures of the Company and its affiliated companies in
effect at any time during the one-year period immediately preceding
the Effective Date or, if more favorable to the Executive, as in
effect at any time thereafter with respect to other peer executives
of the Company and its affiliated companies.
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(vi) Fringe Benefits. During
the Employment Period, the Executive shall be entitled to fringe
benefits in accordance with the most favorable plans, practices,
programs and policies of the Company and its affiliated companies
in effect at any time during the one-year period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter with respect to
other peer executives of the Company and its affiliated
companies.
(vii) Office and Support
Staff. During the Employment Period, the Executive shall be
entitled to an office or offices of a size and with furnishings and
other appointments, and to exclusive personal secretarial and other
assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated
companies at any time during the one-year period immediately
preceding the Effective Date or, if more favorable to the
Executive, as provided at any time thereafter with respect to other
peer executives of the Company and its affiliated
companies.
(viii) Vacation. During the
Employment Period, the Executive shall be entitled to paid vacation
in accordance with the most favorable plans, policies, programs and
practices of the Company and its affiliated companies as in effect
at any time during the one-year period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect
at any time thereafter with respect to other peer executives of the
Company and its affiliated companies.
5. Termination of
Employment.
(a) Death or Disability. The
Executive’s employment shall terminate automatically upon the
Executive’s death during the Employment Period. If the
Company determines in good faith that the Disability of the
Executive has occurred during the Employment Period (pursuant to
the definition of “Disability” set forth below), it may
give to the Executive written notice in accordance with Section
12(b) of this Agreement of its intention to terminate the
Executive’s employment. In such event, the Executive’s
employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the
“Disability Effective Date”), provided that, within the
30 days after such receipt, the Executive shall not have returned
to full-time performance of the Executive’s duties. For
purposes of this Agreement, “Disability” means the
absence of the Executive from the Executive’s duties with the
Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is
determined to be total and permanent by a physician selected by the
Company or its insurers and acceptable to the Executive or the
Executive’s legal representative (such agreement as to
acceptability not to be withheld unreasonably).
(b) Cause. The Company may
terminate the Executive’s employment during the Employment
Period for “Cause”. For purposes of this Agreement,
“Cause” means (i) an act or acts of personal dishonesty
taken by the Executive and intended to result in substantial
personal enrichment of the Executive at the expense of the Company,
(ii) repeated violations by the Executive of the Executive’s
obligations under Section 4(a) of this Agreement which are
demonstrably willful and deliberate on the Executive’s part
and which are not remedied in a
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reasonable period of time
after receipt of written notice from the Company or (iii) the
conviction of the Executive of a felony involving moral
turpitude.
(c) Good Reason. The
Executive’s employment may be terminated during the
Employment Period by the Executive for Good Reason. For purposes of
this Agreement, “Good Reason” means:
(i) the assignment to the
Executive of any duties inconsistent in any respect with the
Executive’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
contemplated by Section 4(a) of this Agreement, or any other action
by the Company which results in a diminution in such position,
authority, dutie
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