Exhibit 10.14
CHANGE IN CONTROL PROTECTION AGREEMENT
AGREEMENT effective as of this 30th day of November 2003 ("the date of
agreement") by and between Boston Private Financial Holdings, a Massachusetts
Corporation (the "Company"), and Xxxxxxxx Xxxxxx, an individual (the
"Employee").
WHEREAS, the Company considers it essential to the best interests of
its stockholders to xxxxxx the continuous employment of key management personnel
by minimizing the uncertainty, departures or distractions of management
personnel associated with a Change in Control (as hereinafter defined);
NOW THEREFORE, the Company and the Employee, in consideration of the
premises and mutual covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
agree as follows:
1. CHANGE IN CONTROL. A "Change in Control" shall be deemed to have
occurred in any one of the following events:
(a) any "person" (as such term is defined in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934 (the "Act")) (other than the Company, any
trustee or other fiduciary holding securities under an employee benefit plan or
trust of the Company, or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company) becomes a "beneficial owner" (as such term is
defined in Rule 13d-3 promulgated under the Act), directly or indirectly, of
securities of the Company representing at least twenty-five percent (25%) or
more of the combined voting power of the Company's then outstanding securities;
(b) persons who, as of the date of the Agreement constituted the
Company's Board (the "Incumbent Board") cease for any reason, including without
limitation, as a result of a tender offer, proxy contest, merger or similar
transaction, to constitute at least a majority of the Board of Directors of the
Company, provided that any person becoming a director of the Company subsequent
to the date of agreement whose election or nomination for election was approved
by at least a majority of the directors then comprising the Incumbent Board
shall, for purposes of this Agreement, be considered a member of the Incumbent
Board; or
(c) the stockholders of the Company shall approve (i) any consolidation
or merger of the Company or its subsidiaries where the stockholders of the
Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as such term is
defined in Rule 13d-3 under the Act), directly or indirectly, shares
representing in the aggregate 50% or more of the voting shares of the
corporation issuing cash or securities in the consolidation or merger (or of its
ultimate parent corporation, if any), (ii) any sale, lease, exchange or other
transfer (in one transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or substantially all of the
assets of the Company or (iii) any plan or proposal for the liquidation or
dissolution of the Company.
2. TERMINATING EVENT. A "Terminating Event" shall mean any of the
events provided in this Section 2 occurring subsequent to a Change in Control as
defined in Section 1:
(a) termination by the Company of the employment of the Employee with
the Company for any reason other than (i) conviction of the Employee of, or plea
of guilty or nolo contendere by the Employee to, a felony, or (ii) dishonest
acts against the Company or any of its subsidiaries, or (iii) willful gross
misconduct which is likely to cause financial loss to the Company or any of its
subsidiaries or to cause damage to the business reputation of the Company or any
of its subsidiaries, or (iv) willful and repeated misconduct or gross neglect
constituting bad faith in performing the Employee's duties with the Company, or
(v) breach of fiduciary duty involving personal profit to the Employee or (vi)
the failure by the Employee to perform his full-time duties with the Company by
reason of his death, disability or retirement; PROVIDED, however, that a
Terminating Event shall not be deemed to have occurred pursuant to this Section
2(a) solely as a result of the Employee being an employee of any direct or
indirect successor to the business or assets of the Company, rather than
continuing as an employee of the Company following a Change in Control. For
purposes of clauses (iv) and (v) of this Section 2(a), no act, or failure to
act, on the Employee's part shall be deemed "willful" unless done, or omitted to
be done, by the Employee without reasonable belief that the Employee's act, or
failure to act, was in the best interest of the Company and any of its
subsidiaries. For purposes of clause (vi) of this Section 2(a) hereof,
"disability" shall mean the Employee's incapacity due to physical or mental
illness which has caused the Employee to be unable to carry out the full-time
performance of his duties with the Company. Disagreement regarding a
determination of disability shall be subject to the certification of a qualified
medical doctor agreed to by the Company and the Employee, or, in the event of
the Employee's incapacity to designate a doctor, the Employee's legal
representative. In the absence of an agreement between the Company and the
Employee in designating a doctor, each party shall nominate a qualified medical
doctor, and the two doctors so nominated shall select a third doctor, who shall
make the determination as to the disability of the Employee. For purposes of
clause (vi) of this Section 2(a) "retirement" shall mean termination of the
Employee's employment in accordance with the Company's retirement policy, not
including early retirement, generally applicable to its salaried employees, as
in effect immediately prior to the Change in Control, or in accordance with any
retirement arrangement established with respect to the Employee with the
Employee's express written consent;
(b) termination by the Employee of the Employee's employment with the
Company for Good Reason. "Good Reason" shall mean the occurrence of any of the
following events:
(i) a significant adverse change, not consented to by the Employee,
in the nature or scope of the Employee's responsibilities, authorities, powers,
title, functions or duties from the responsibilities, authorities, powers,
title, functions or duties exercised by the Employee immediately prior to the
Change in Control; or
(ii) a reduction in the Employee's annual compensation as in effect
on the date hereof or as the same may be increased from time to time; or
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(iii) an attempt by the Company to relocate the Employee to, or to
require him to perform regular services, at any location that is more than fifty
(50) miles from the Employee's employment location on the dare hereof ; or
(iv) except as required by law, the failure by the Company or any
of its subsidiaries to continue in effect any benefits or prerequisites, or any
pension, life insurance, medical insurance or disability plan in which the
Employee was participating immediately prior to the Change in Control unless the
Company or its successor provides the Employee with a plan or plans that provide
substantially similar benefits, or the taking of any action by the Company that
would adversely affect the Employee's benefits under any such plans or deprive
the Employee of any material fringe benefit enjoyed by the Employee immediately
prior to the Change in Control; or
(v) the failure by the Company to obtain an effective agreement
from any successor to assume and agree to perform this Agreement.
3. SEVERANCE PAYMENT, In the event a Terminating Event occurs within
two years after a Change in Control,
(a) the Company shall pay to the Employee an amount equal to 2.99 times
the total of the current salary plus the average of the bonus for the three (3)
most recent taxable years preceding a Change in Control. SAID AMOUNT SHALL BE
PAID IN ONE LUMP SUM PAYMENT NO LATER THAN [FIVE (5)] DAYS FOLLOWING THE DATE OF
THE TERMINATING EVENT;
(b) the Company shall pay to the Employee a pro-rata bonus for the year
in which the Terminating Event occurs (the "Termination Year"), payable as soon
as practicable, and determined by multiplying the bonus the Employee received
for the year immediately prior to the Termination Year by a fraction, the
numerator of which is the number of days the Employee was employed during the
Termination Year and the denominator of which is 365;
(c) the Company shall continue the Employee's medical, and all other
benefits of the Employee under any of the Company's medical benefit plans, life
insurance plans, disability income plans, retirement plans, benefits
equalization plan, vacation plans, expense reimbursement plans or other employee
benefit plans (collectively, the "Employee Benefit Plans" and each individually
an "Employee Benefit Plan"), upon the same terms as in effect on the date of the
Terminating Event through 2.99 years following a Change in Control or until such
time as the Employee becomes eligible for coverage under another group benefit
plan. Solely for purposes of benefits continuation under the Employee Benefit
Plans, the Employee shall be deemed to be an active employee. To the extent that
benefits required under this Section 3(c) cannot be provided under the terms of
any Employee Benefit Plan, the Company shall enter into alternative arrangements
that will provide the Employee with comparable benefits; and
(d) any outstanding unvested stock options and restricted stock awards
under either the 1988 Employee Incentive Stock Option Plan, the Company's 1997
Long-Term Stock Incentive plan or other plan shall become immediately
exercisable or otherwise vested,
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4. LIMITATION ON BENEFITS. It is the intention of the Employee and of
the Company that no payments by the Company to or for the benefit of the
Employee under this Agreement or any other agreement or plan pursuant to which
he is entitled to receive payments or benefits shall be nondeductible to the
Company by reason of the operation of Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code"), relating to parachute payments. Accordingly,
and notwithstanding any other provision of this Agreement or any such agreement
or plan, if by reason of the operation of said Section 280G, any such payments
exceed the amount which can be deducted by the Company, such payments shall be
reduced to the maximum amount which can be deducted by the Company. To the
extent that payments exceeding such maximum deductible amount have been made to
or for the benefit of the Employee, such excess payments shall be refunded to
the Company with interest thereon at the applicable federal rate determined
under Section 1274(d) of the Code, compounded annually, or at such other rate as
may be required in order that no such payments shall be non-deductible to the
Company by reason of the operation of said Section 280G. To the extent that
there is more than one method of reducing the payments to bring them within the
limitations of said Section 280G, the Employee shall determine which method
shall be followed, provided that if the Employee fails to make such
determination within ten (10) days after the Company has sent the Employee
written notice of the need for such reduction, the Company may determine the
method of such reduction in its sole discretion. As promptly as practicable
following such determination and election hereunder, the Company shall pay to or
distribute to the Employee such amounts as are then due to the Employee under
this Agreement.
5. TERM. This Agreement shall take effect on the date first set forth
above and shall terminate upon the earlier of (1) the termination by the Company
of the employment of the Employee because of one of the enumerated reasons set
forth in Section 2(a) hereof or (ii) the resignation of the Employee after a
Change in Control for any reason other than the occurrence of a Terminating
Event.
6. WITHHOLDING. All payments made by the Company under this Agreement
shall be net of any tax or other amounts required to be withheld by the Company
under applicable law.
7. NO MITIGATION. The Company agrees that, if the Employee's employment
by the Company is terminated during the term of this Agreement, the Employee is
not required to seek other employment or to attempt in any way to reduce any
amounts payable to the Employee by the Company pursuant to Section 3(a) and (b)
hereof. Further, the amount of any payment provided for in this Agreement shall
not be reduced by any compensation earned by the Employee as the result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Employee to the Company or otherwise.
8. ASSIGNMENT. Neither the Company nor the Employee may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other party, and without
such consent any attempted transfer shall be null and void and of no effect.
This Agreement shall inure to the benefit of and be binding upon the Company and
the Employee, their respective successors, executors, administrators, heirs and
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permitted assigns, including, in the case of the Company, any other corporate
entity which the Company may be merged or otherwise combined or which may
acquire the Company or its assets in whole or substantial part. In the event of
the Employee's death after a Terminating Event but prior to the completion by
the Company of all payments due him under Section 3(a) and (b) of this
Agreement, the Company shall continue such payments to the Employee's
beneficiary designated in writing to the Company prior to his death (or to his
estate, if the Employee fails to make such designation).
9. ENFORCEABILITY. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
10. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
11. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by registered or certified mail, postage prepaid, to the
Employee at the last address the Employee has filed in writing with the Company,
or to the Company at its main office, attention of the Board of Directors.
12. EFFECT ON OTHER PLANS. An election by the Employee to resign after
a Change in Control under the provisions of this Agreement shall not be deemed a
voluntary termination of employment by the Employee for the purpose of
interpreting the provisions of any of the Company's benefit plans, programs or
policies. Nothing in this Agreement shall be construed to limit the rights of
the Employee under the Company's benefit plans, programs or policies except as
otherwise provided in Section 4 hereof, and except that the Employee shall have
no rights to any severance benefits under any severance pay plan.
13. AMENDMENT. This Agreement may be amended or modified only by a
written instrument signed by the Employee and by a duly authorized
representative of the Company.
14. GOVERNING LAW. This is a Massachusetts contract and shall be
construed under and be governed in all respects by the laws of the Commonwealth
of Massachusetts, without regard to conflict of law principles.
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15. OBLIGATIONS OF SUCCESSORS. In addition to any obligations imposed
by law upon any successor to the Company, the Company will use its best efforts
to require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform if no such succession had taken place.
16. CONFIDENTIAL INFORMATION. The Employee shall never use, publish or
disclose in a manner adverse to the Company's interests, any proprietary or
confidential information relating to (a) the business, operations or properties
of the Company or any subsidiary or other affiliate, of the Company, or (b) any
materials, processes, business practices, technology, know-how, research,
programs, customer lists, customer requirements or other information used in the
manufacture, sale or marketing of any of the respective products or services of
the Company or any subsidiary or other affiliate of the Company; provided,
however, that no breach or alleged breach of this Section 16 shall entitle the
Company to fail to comply fully and in a timely manner with any other provision
hereof. Nothing in this Agreement shall preclude the Company from seeking money
damages, or equitable relief by injunction or otherwise without the necessity of
proving actual damage to the Company, for any breach by the Employee hereunder.
17, CONTRACT OF EMPLOYMENT. Nothing in this Agreement shall be
construed as creating an express or implied contract of employment and, except
as otherwise agreed in writing between the Employee and the Company, the
Employee shall not have any right to be retained in the employ of the Company.
[END OF TEXT]
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company by its duly authorized officer, and by the Employee,
as of the date first above written.
For Boston Private Financial Holdings:
/s/ [ILLEGIBLE]
--------------------------------------
Name:
Title:
Xxxxxxxx X. Xxxxxx
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Employee Name
/s/ Xxxxxxxx X. Xxxxxx
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Employee Signature
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