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Exhibit 10(e)
BANKNORTH GROUP, INC.
SEVERANCE AGREEMENT
(NAME)
This AGREEMENT, made and entered into as of the 10th day of July, 2000,
by and among BANKNORTH GROUP, INC. (the "Company") and (NAME) (the "Executive");
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Company in a key executive
capacity and possesses intimate knowledge of the business and affairs of the
Company; and
WHEREAS, the Company desires to ensure, insofar as possible, that it
will continue to have the benefit of the Executive's services and to protect its
confidential information and goodwill; and
WHEREAS, the Company recognizes that circumstances may arise in which a
change in the control of the Company occurs, thereby causing uncertainty of
employment without regard to the Executive's competence or past contributions;
and
WHEREAS, the Company and the Executive wish to provide reasonable
security to the Executive against changes in the Executive's relationship with
the Company in the event of such change in control;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
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1. DEFINITIONS
(a) ACCRUED BENEFITS means:
(i) All salary earned or accrued through the date the Executive's
employment is terminated;
(ii)reimbursement for any and all monies advanced in connection
with the Executive's employment for reasonable and necessary expenses incurred
by the Executive through the date the Executive's employment is terminated;
(iii) any and all other compensation previously earned and
deferred at the election of the Executive or pursuant to any deferred
compensation plans then in effect together with any interest or desired earnings
thereon;
(iv) annual bonus, if any, accrued for a Year prior to the Year in
which employment terminates, but not yet paid to the Executive, under any bonus
or incentive compensation plan or plans in which the Executive is a participant;
(v) a pro rata portion of the maximum bonus payable to the
Executive for the Year in which employment terminates under any bonus or
incentive compensation plan or plans in which the Executive is a participant,
determined as if the Executive had remained in employment for the full Year and
prorated based upon weeks, including partial weeks, of employment during that
Year;
(vi)all other payments and benefits to which the Executive may be
entitled under the terms of any applicable compensation arrangement or benefit
plan or program of the Company.
(b) ACT means the Securities Exchange Act of 1934, as amended.
(c) AFFILIATE of any specified persons means any other person that,
directly or
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indirectly, through one or more intermediaries, controls, or is controlled by,
or is under direct or indirect common control with such specified person. For
the purposes of this definition, "control" means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
(d) ANNUAL COMPENSATION shall mean the sum of:
(i) the Executive's annual base salary at the rate in effect on
the date of a termination of employment as described in Section 3 or in Section
7(d) (or, in the event of a termination for Good Reason under Section 1(l)(i)(A)
below, the annual base salary as in effect immediately before the actions giving
rise to Good Reason); plus
(ii) the greatest of the bonuses either paid or accrued in either
the Year of the Change in Control or the immediately preceding Year.
(e) BASE AMOUNT means an amount equal to the Executive's Annualized
Includable Compensation for the Base Period as defined in Section 280G(d)(1) and
(2) of the Code (as hereinafter defined).
(f) CAUSE means (i) the executive's conviction of, or plea of nolo
contendere to, a felony; or (ii) willful and intentional misconduct, willful
neglect, or gross negligence, in the performance of the Executive's duties,
which has caused a demonstrable and serious injury to the Company, monetary or
otherwise.
The Executive shall be given written notice that the Company intends to
terminate his employment for Cause. Such written notice shall specify the
particular acts, or failures to act, on the basis of which the decision to so
terminate employment was made.
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In the case of a termination for Cause as described in Clause (ii), above,
the Executive shall be given the opportunity within 30 days of the receipt of
such notice to meet with the Board to defend such acts, or failures to act,
prior to termination. The Company may suspend the Executive's title and
authority pending such meeting, and such suspension shall not constitute "Good
Reason," as defined in subsection (l) below.
(g) CHANGE IN CONTROL of the Company shall mean a Change in Control of
a nature that would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A promulgated under the Act or any successor
thereto, provided that without limiting the foregoing, a Change in Control of
the Company also shall mean the occurrence of any of the following events:
(i) any "person" (as defined under Section 3(a)(9) of the Act) or
"group" of persons (as provided under Rule 13d-3 of the Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 or otherwise under the Act),
directly or indirectly (including as provided in Rule 13d-3(d)(1) of the Act),
of capital stock of the Company the holders of which are entitled to vote for
the election of directors ("voting stock") representing that percentage of the
Company's then outstanding voting stock (giving effect to the deemed ownership
of securities by such person or group, as provided in Rule 13d-3(d)(1) of the
Act, but not giving effect to any such deemed ownership of securities by another
person or group) equal to or greater than twenty- five percent (25%) of all such
voting stock;
(ii) During any period of twenty four consecutive months,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (including for this purpose any new director whose
election or nomination for election by the Company's shareholders was approved
by a vote of at least a majority of the directors then still
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in office who were directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board of Directors of the
Company (excluding any Board seat that is vacant or otherwise unoccupied).
(iii) There shall be consummated any consolidation, merger, stock
for stock exchange or similar transaction (collectively, "Merger Transactions")
involving securities of the Company in which holders of voting stock of the
Company immediately prior to such consummation own, as a group, immediately
after such consummation, voting stock of the Company (or, if the Company does
not survive the Merger Transaction, voting securities of the corporation
surviving such transaction) having less than 50% of the total voting power in an
election of directors of the Company (or such other surviving corporation).
(h) CODE means the Internal Revenue Code of 1986, including any
amendments thereto.
(i) COMPANY RETIREMENT PLAN is defined in Section 1(q) below.
(j) EFFECTIVE DATE means the date this Agreement is executed by the
parties.
(k) EMPLOYMENT PERIOD means a period commencing on the date of a Change
in Control of the Company and ending on the earlier of (i) the last day of the
twenty-fourth month following the month in which the Change in Control occurs,
or (ii) the Executive's Normal Retirement Date.
(l) GOOD REASON means:
(i) any breach of this Agreement by the Company, including without
limitation (A) any reduction during the employment period in the amount of the
Executive's base salary or aggregate benefits as in effect from time to time,
(B) failure to provide the Executive with the same fringe benefits that were
provided to the Executive immediately prior to a Change
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in Control of the Company, or with a package of fringe benefits (including paid
vacations) that, though one or more of such benefits may vary from those in
effect immediately prior to such a Change in Control, is substantially
comparable in all material respects to such fringe benefits taken as a whole, or
(C) any other breach by the Company of its obligations contained in Section 6
below;
(ii) without the Executive's express written consent, the
assignment to the Executive of any duties which are materially inconsistent with
the Executive's positions, duties, responsibilities and status immediately prior
to the Change in Control of the Company, a material change in the Executive's
reporting responsibilities, titles or offices as an employee and as in effect
immediately prior to the Change in Control, or a significant reduction, in the
Executive's title, duties or responsibilities, or in the level of his support
services;
(iii) the relocation of the Executive's principal place of
employment, without the Executive's written consent, to a location outside the
same metropolitan area in which the Executive was employed at the time of such
Change in Control, or the imposition of any requirement that the Executive spend
more than ninety business days per year at a location other than such principal
place of employment; or
(iv) any purported termination of the Executive's employment for
Cause, Disability or Retirement which is not effected pursuant to a Notice of
Termination satisfying the requirements of paragraph (n) below.
Upon the occurrence of any of the events described in (i), (ii), (iii), or
(iv) above, the Executive shall give the Company written notice that such event
constitutes Good Reason, and the Company shall thereafter have thirty (30) days
in which to cure. If the Company has not cured in that time, the event shall
constitute Good Reason.
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(m) NORMAL RETIREMENT DATE means Normal Retirement Date as defined in
the Peoples Heritage Financial Group, Inc. Retirement Plan.
(n) NOTICE OF TERMINATION shall mean a notice which shall indicate the
specific termination provision relied upon in this Agreement and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated.
(o) PERSON or GROUP means a "person" or "group," as defined in Section
1(g)(i) hereof.
(p) PLAN YEAR with respect to any of the Retirement Plan, the Thrift
Plan (as defined below) or the Employee Stock Ownership Plan, the "plan year" as
defined in such plan.
(q) RETIREMENT PLAN means the Peoples Heritage Financial Group, Inc.
Retirement Plan or any successor plan.
(r) SERP AGREEMENT means the Supplemental Retirement Agreement between
the Executive and the Company.
(s) YEAR means a calendar year unless otherwise specifically provided.
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2. TERM OF AGREEMENT.
This Agreement shall begin on the date first set forth above and shall
continue until January 1, 2003, provided that, on that date, and on each
succeeding January 1, the term shall be renewed for an additional period of one
year unless either party has given written notice that the term is not so
renewed, which notice must be delivered to the other party at least ninety (90)
days prior to the date of any such renewal, and further provided that if a
Change in Control of the Company occurs during such term, the term shall in all
events continue through the last day of the Employment Period. This Agreement is
also subject to earlier termination as provided in Section 3 below. All rights
and obligations hereunder shall survive to the extent necessary to the intended
enforcement thereof.
3. TERMINATION OF EMPLOYMENT PRIOR TO A CHANGE IN CONTROL.
(a) The Company and the Executive shall each retain the right
to terminate the employment of the Executive at any time prior to a Change in
Control of the Company. In the event the Executive's employment is terminated
prior to a Change in Control of the Company, this Agreement shall, except as
provided in Subsection (b) below, be terminated and of no further force and
effect, and any and all rights and obligations of the parties hereunder shall
cease.
(b) If the Executive's employment is terminated by the Company
prior to the occurrence of a Change in Control of the Company, and if it can be
shown that the Executive's termination (i) was at the direction or request of a
third party that had taken steps reasonably calculated to effect the Change in
Control of the Company thereafter, or (ii) otherwise occurred in connection
with, or in anticipation of, the Change in Control of the Company, the Executive
shall have the rights described in Section 7(d) below, as if a Change in Control
of the Company
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had occurred on the date immediately preceding such termination.
4. EMPLOYMENT FOLLOWING A CHANGE IN CONTROL.
If a Change in Control of the Company occurs when the Executive is
employed by the Company, the Company will continue thereafter to employ the
Executive, and the Executive will remain in the employ of the Company, during
the Employment Period, in accordance with the terms and provisions of this
Agreement.
5. DUTIES.
During the Employment Period, the Executive shall serve in such
capacities and positions as may be assigned by the Company consistent with the
Executive's capacities and positions on the Effective Date and shall devote the
Executive's best efforts and all of the Executive's business time, attention and
skill to the business and affairs of the Company, as such business and affairs
now exist and as they may hereafter be conducted.
6. COMPENSATION.
During the Employment Period, the Executive shall be compensated by the
Company as follows:
(a) the Executive shall receive, at such intervals and in
accordance with such standard policies as in effect on the date of the Change in
Control of the Company, an annual base salary not less than the Executive's
annual base salary as in effect on the date of the Change in Control of the
Company, subject to adjustment as hereinafter provided;
(b) the Executive shall be included in all plans providing
incentive compensation to executives, including but not limited to bonus,
deferred compensation, annual or other incentive compensation, supplemental
pension, stock ownership, stock option, stock appreciation, stock bonus and
similar or comparable plans as any such plans are extended by the
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Company from time to time to senior corporate officers, key employees and other
employees of comparable status;
(c) the Executive shall be reimbursed, at such intervals and
in accordance with such standard policies as may be in effect on the date of the
Change in Control of the Company, for any and all monies advanced in connection
with the Executive's employment for reasonable and necessary expenses incurred
by the Executive on behalf of the Company, including travel expenses;
(d) the Executive shall be included, to the extent eligible
thereunder, in any and all plans providing but not limited to, group life
insurance, hospitalization, disability, medical, dental, pension, profit sharing
and stock bonus plans, and shall be provided any and all other benefits and
perquisites made available to other employees of comparable status and position
at the expense of the Company on a comparable basis;
(e) the Executive shall receive annually not less than the
amount of paid vacation and not fewer than the number of paid holidays received
annually immediately prior to the Change in Control of the Company or available
annually to other employees of comparable status and position with the Company;
and
(f) During the Employment Period the Board of Directors of the
Company, or an appropriate committee thereof, will consider and appraise, at
least annually, the contributions of the Executive to the Company's operating
efficiency, growth, production and profits and, in accordance with past
practice, due consideration shall be given to the upward adjustment of the
Executive's compensation rate, at least annually, commensurate with increases
generally given to other senior corporate officers and key employees and as the
scope of the Executive's duties expands.
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7. TERMINATION OF EMPLOYMENT.
Any termination by the Company or the Executive of the Executive's
employment during the Employment Period shall be communicated by written Notice
of Termination to the Executive if such notice is delivered by the Company and
to the Company if such notice is delivered by the Executive. The Notice of
Termination shall comply with the requirements of Section 1(n).
(a) TERMINATION FOR DISABILITY. If during the Employment
Period, the Executive's employment is terminated on account of the Executive's
disability, as determined under the Company's long-term disability plan (as in
effect on the date of a Change in Control of the Company), the Executive shall
receive all Accrued Benefits, if any, and shall remain eligible for all benefits
as provided pursuant to the terms of any long-term disability programs of the
Company in effect at the time of such termination.
(b) TERMINATION ON THE EXECUTIVE'S DEATH. If, during the
Employment Period, the Executive's employment is terminated on account of the
Executive's death, the Executive's estate or his designated beneficiary (or
beneficiaries), as applicable, shall receive the Accrued Benefits.
(c) VOLUNTARY TERMINATION OR TERMINATION FOR CAUSE. If, during
the Employment Period, (i) the Executive shall terminate employment with the
Company other than for Good Reason, or (ii) the Executive's employment is
terminated for Cause, the Executive shall receive from the Company only the
Accrued Benefits.
(d) TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE
EXECUTIVE FOR GOOD REASON. If, during the Employment Period, the Executive's
employment with the Company is terminated by the Company other than for Cause,
or by the Executive for Good Reason, then:
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(i) the Executive shall be entitled to receive from
the Company the Accrued Benefits, except that, for this purpose, Accrued
Benefits shall not include any entitlement to severance under any Company
severance policy generally applicable to the Company's salaried employees;
(ii) the Executive shall receive from the Company, no
less than ten (10) days following termination of his employment, a lump sum
payment (the "Termination Payment") equal to three times the Annual
Compensation;
(iii) for purposes of determining the Executive's
benefit under the SERP Agreement, the Executive shall be credited with 36
additional months of age and of service determined as follows:
(A) The additional 36 months of age and
service shall be applied for purposes of benefit accrual, vesting, eligibility
for early retirement, subsidized early retirement factors, actuarial equivalence
and any other purposes under the Retirement Plan and the SERP Agreement.
(B) Any provision under the Retirement Plan
or the SERP Agreement prohibiting the accrual of any additional benefits after
the Executive has been credited with more than a stated number of years of
service shall be disregarded.
(C) For purposes of determining the amount
of the Executive's benefit under the SERP Agreement, the reduction in respect of
the benefit paid under the Retirement Plan shall be based on the Executive's
actual Retirement Plan benefit (that is, without any additional deemed service).
(D) For purposes of determining the Early
Retirement Benefit (as
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defined in the SERP Agreement) and other optional forms of benefit under the
SERP Agreement, if the Executive is less than fifty-five (55) years of age, the
Executive shall be deemed to be at least fifty-five (55) years of age on the
date his employment with the Company terminates, notwithstanding the Executive's
actual age, if less.
(E) the Benefit Computation Base (as defined
in the SERP Agreement) shall be determined as if it were being calculated at the
end of the 36 month period of service credited to the Executive under this
Section 7(d)(iii) and as if during such 36 additional month period the
Executive's annualized compensation was the same as such compensation for (I)
the Year during which the Executive's employment is terminated, or, (II) any
Year before the Change in Control occurred, whichever is greater.
(F) Any amendment to the Retirement Plan
within the twelve (12) month period prior to the termination of the Executive's
employment shall be disregarded to the extent that the application of such
amendment would decrease the total amount of the benefits provided for in this
Section 7(d)(iii).
(G) The Executive shall be entitled to a
lump sum distribution of his SERP in all events, and the Company shall not be
entitled to require payment over a longer period. If the Executive elects a lump
sum payment (i) the actuarial equivalent benefit shall be determined in
accordance with the provisions of the Retirement Plan as in effect immediately
prior to the Change in Control, or as in effect on termination of the
Executive's employment, whichever creates the greater benefit, and (ii) payment
shall be made within thirty (30) days following the later of (A) termination of
the Executive's employment, or (B) the date the Executive gives written notice
of the Executive's intent to elect a lump sum.
(iv) the Executive shall be paid a lump sum amount
equal to (A) the
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sum of (I) the aggregate contributions and forfeitures allocated to the
Executive's account under the Peoples Heritage Financial Group, Inc. Profit
Sharing and Employee Stock Ownership Plan (the "Employee Stock Ownership Plan")
for the Plan Year ending immediately prior to the Change of Control, or, if
different, the Plan Year ending immediately prior to the termination of the
Executive's employment, whichever Plan Year would produce the greater aggregate
value, (II) the total aggregate value of all contributions, other than elective
contributions by the Executive and employer matching contributions relating
thereto, and forfeitures allocated to the Executive's account under the Peoples
Heritage Financial Group, Inc. Thrift Incentive Plan (the "Thrift Plan") for the
Plan Year ending immediately prior to the Change of Control, or, if different,
the Plan Year ending immediately prior to the termination of the Executive's
employment, whichever Plan Year would produce the greater aggregate value, and
(III) (A) the matching contributions under the Thrift Plan (or its successor)
which would have been credited under such plan on Executive's behalf, if the
Executive had contributed the maximum salary deferral contribution allowable
under Section 402(g) of the Code, for the calendar year in which he terminated
employment with the Company, multiplied by (B) three (3).
(v) all rights under any equity or long-term
incentive plan shall be fully vested;
(vi) the Executive shall (A) continue to be covered
at the expense of the Company by the same or equivalent hospital, medical,
dental, accident, disability and life insurance coverage as in effect for the
Executive immediately prior to termination of his employment, until the earlier
of (I) 36 months following termination of employment, or (II) the date the
Executive has commenced new employment and has thereby become eligible for
comparable benefits; provided that, with respect to any of the coverages
described above, if such
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coverage is provided through an insurance policy with an insurance company
unaffiliated with the initial Company, and if under the terms of the applicable
policy, it is not possible to provide continued coverage (including if continued
coverage under the policy would increase the Company's cost allocable to the
Executive by more than 100%), then the Company shall pay the Executive a lump
sum cash amount, no later than sixty (60) days following termination of
employment an amount equal to twice the aggregate allocable cost of such
coverage as applicable immediately prior to termination of employment, such
payment to be made without any discount for present value.
8. CERTAIN SUPPLEMENTAL PAYMENTS BY THE COMPANY.
(a) In the event the Executive's employment is terminated
pursuant to Section 7(d) above, and if in connection therewith it is determined
that (i) part or all of the compensation and benefits to be paid to the
Executive constitute "parachute payments" under Section 280G of the Code, and
(ii) the payment thereof will cause the Executive to incur excise tax under
Section 4999 of the Code, the Company, on or before the date for payment of such
excise tax, shall pay the Executive, in lump sum, an amount (the "Gross-Up
Amount") such that, after payment of all federal, state and local income tax and
any additional excise tax under Section 4999 of the Code in respect of the
Gross-Up Amount payment, the Executive will be fully reimbursed for the amount
of such excise tax.
(b) The determination of the Parachute Amount, the Base Amount
and the Gross-Up Amount, as well as any other calculations necessary to
implement this Section 8 shall be made by a nationally recognized accounting or
benefits consulting firm selected by the Executive and reasonably satisfactory
to the Company and which has not performed services, other than minor indirect
or incidental services, for either the Company or the Executive for three
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years prior to the date the Consultant is retained for this purpose. The
Consultant's fee shall be paid by the Company.
(c) As promptly as practicable following such determination
and the elections hereunder, the Company shall pay to or distribute to or for
the benefit of the Executive such amounts as are then due to the Executive under
this Agreement and shall promptly pay to or distribute for the benefit of the
Executive in the future such amounts as become due to the Executive under this
Agreement.
(d) As a result of the uncertainty in the application of
Section 280G of the Code at the time of an initial determination hereunder, it
is possible that payments will not have been made by the Company which should
have been made under clause (a) of this Section 8 ("Underpayment"). In the event
that there is a final determination by the Internal Revenue Service, or a final
determination by a court of competent jurisdiction, that an Underpayment has
been made and the Executive thereafter is required to make any payment of an
excise tax, income tax, any interest or penalty, the accounting or benefits
consulting firm selected under clause (b) above shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Executive.
9. FURTHER OBLIGATIONS OF THE EXECUTIVE.
(a) CONFIDENTIALITY. During and following the Executive's
employment by the Company, the Executive shall hold in confidence and not
directly or indirectly disclose or use or copy or make lists of any confidential
information or proprietary data of the Company, except to the extent authorized
in writing by the Board of Directors of the Company or required by any court or
administrative agency, other than to an employee of the Company or a person to
whom disclosure is reasonably necessary or appropriate in connection with the
performance by the
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Executive of duties as an executive of the Company. Confidential information
shall not include any information known generally to the public or any
information of a type not otherwise considered confidential by persons engaged
in the same business or a business similar to that of the Company. All records,
files, documents and materials or copies thereof, relating to the Company's
business which the Executive shall prepare, or use, or come into contact with,
shall be and remain the sole property of the Company and shall be promptly
returned to the Company upon termination of employment with the Company.
(b) NON-SOLICITATION. For the period from the Effective Date
until the second anniversary of the termination of the Executive's employment,
the Executive will not, directly or indirectly, contact, approach or solicit for
the purpose of offering employment to or hiring (whether as an employee,
consultant, agent, independent contractor or otherwise) any officer of the
Company, or its affiliates, other than on the Company's behalf, without the
prior written consent of the Company.
10. EQUITABLE RELIEF.
Executive acknowledges and agrees that in the event of a breach by
Executive of any of the provisions of Section 9 hereof, the Company shall suffer
irreperable harm for which monetary damages alone will constitute an
insufficient remedy. Consequently, in the event of any such breach, the Company
may, in addition to other rights and remedies existing in its favor, apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof, in each case without the requirement of posting a bond
or proving actual damages.
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11. EXPENSES AND INTEREST.
If, after a Change in Control of the Company, a good faith dispute
arises with respect to the enforcement of the Executive's rights under this
Agreement, or if any legal or arbitration proceeding shall be brought in good
faith to enforce or interpret any provision contained herein, or to recover
damages for breach hereof, the Executive shall recover from the Company any
reasonable attorney's fees and necessary costs and disbursements incurred as a
result of such dispute, and prejudgment interest on any money judgment or
arbitration award obtained by the Executive calculated at the rate of interest
announced by Peoples Heritage Bank, N.A. or the successor thereto, from time to
time as its prime rate from the date that payments to him should have been made
under this Agreement.
12. PAYMENT OBLIGATIONS ABSOLUTE. The Company's obligation during and
after the Employment Period to pay the Executive the compensation and to make
the arrangements provided herein shall be absolute and unconditional and shall
not be affected by any circumstances, including, without limitation, any setoff,
counterclaim, recoupment, defense or other right which the Company may have
against him or anyone else. All amounts payable by the Company hereunder shall
be paid without notice or demand. Each and every payment made hereunder by the
Company shall be final and the Company will not seek to recover all or any part
of such payment from the Executive or from whomsoever may be entitled thereto,
for any reason whatever except as provided in Section 8(d) above.
13. SUCCESSORS.
(a) If the Company sells, assigns, or transfers all or
substantially all of its business and assets to any Person, excluding Affiliates
of the Company, or if the Company merges into or consolidates or otherwise
combines with any Person which is a continuing or
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successor entity, then the Company shall assign all of its rights, title and
interest in this Agreement as of the date of such event to the Person which is
either the acquiring or successor Company, and such Person shall assume in
writing and perform from and after the date of such written assignment all of
the terms, conditions and provisions imposed by this Agreement upon the Company.
Failure of the Company to obtain such written assignment shall be a breach of
this Agreement. In case of such assignment by the Company and of written
assumption and agreement by such Person, all further rights as well as all other
obligations of the Company under this Agreement thenceforth shall cease and
terminate and thereafter the expression "the Company" wherever used herein shall
be deemed to mean such Person or Persons.
(b) This Agreement and all rights of the Executive shall inure
to the benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries.
All amounts payable to the Executive hereunder shall be paid, in the event of
the Executive's death, to the Executive's estate, heirs and representatives.
This Agreement shall inure to the benefit of, be binding upon and be enforceable
by, any successor, surviving or resulting Company or other entity to which all
or substantially all of the Company's business and assets shall be transferred.
This Agreement shall not be terminated by the voluntary or involuntary
dissolution of the Company.
14. ENFORCEMENT. The provisions of this Agreement shall be regarded as
divisible, and if any such provisions or any part hereof are declared invalid or
unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
15. AMENDMENT. This Agreement may not be amended or modified at any
time except by a written instrument executed by the Company and the Executive if
such amendment
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or modification occurs before any Change in Control, or by the Executive and the
Company after any Change in Control.
16. WITHHOLDING. The Company shall be entitled to withhold from
amounts to be paid to the Executive hereunder any federal, state or local
withholding or other taxes, or charge which it is from time to time required to
withhold. The Company shall be entitled to rely on an opinion of counsel if any
question as to the amount or requirement of any such withholding shall arise.
17. GOVERNING LAW
This Agreement and the rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of Maine.
18. ARBITRATION.
Any dispute arising out of this Agreement shall be determined by
arbitration in the State of Maine under the rules of the American Arbitration
Association then in effect and judgment upon any award pursuant to such
arbitration may be enforced in any court having jurisdiction thereof.
19. NOTICE.
Notices given pursuant to this Agreement shall be in writing and shall
be deemed given when received and, if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only postage
prepaid, to the Company at:
Banknorth Group, Inc
X.X. Xxx 0000
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Clerk
or if to the Executive, at the address included in the Company's records, or to
such other address as the party to be notified shall have given to the other.
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20. NO WAIVER.
No waiver by any party at any time of any breach by another party of,
or compliance with, any condition or provision of this Agreement to be performed
by another party shall be deemed a waiver of similar or dissimilar provisions or
conditions at any time.
21. HEADINGS. The headings herein contained are for reference only
and shall not affect the meaning or interpretation of any provision of this
Agreement.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof.
All prior correspondence and proposals (including but not limited to summaries
of proposed terms) and all prior promises, representations, understandings,
arrangements and agreements relating to such subject matter are merged herein
and superseded hereby; provided however, that the terms of the SERP Agreement,
the Retirement Plan, the Thrift Plan, the Employee Stock Ownership Plan, and any
effective applicable employment agreement shall be incorporated herein and made
a part hereof to the extent not inconsistent with the terms hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
THE COMPANY BANKNORTH GROUP, INC.
By:
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Witness Xxxxxxx X. Xxxx
Chairman, President and Chief
Executive Officer
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Witness (NAME)
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