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Exhibit 10.14
EMPLOYMENT AGREEMENT
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THIS AGREEMENT by and between M&T Bank Corporation, a New York
corporation (the "Company") and Xxxx X. Xxxxxxxx (the "Executive") dated as of
the 16th day of May, 2000.
WHEREAS, the Executive serves as Chief Executive Officer of
Keystone Financial, Inc., a Pennsylvania corporation ("Keystone") and possesses
intimate knowledge of the business and affaires of Keystone; and
WHEREAS, pursuant to an Agreement and Plan of Reorganization,
dated as of May 16, 2000, among the Company, Keystone, and a subsidiary of the
Company ("Merger Sub"), Merger Sub will merger with and into Keystone (the
"Merger") and Keystone will become a subsidiary of the Company; and
WHEREAS, the Company has determined that it is critical to the
success of the Merger that the services of the Executive continue to be retained
through the date of the Merger and that the Company be assured of the
Executive's continued attention and dedication during the period pending the
Merger; and
WHEREAS, the Company has further determined that it is
critical to the Company that the Company be assured of the Executive's continued
services following the Merger to assist in the integration of Keystone's
operations and in the implementation of the Company's plans with respect to the
business and operations of Keystone; and
WHEREAS, the Company has further determined that it is
critical that it secure restrictions on the ability of the Executive to engage
in competitive activity after the Executive ceases to be employed by the
Company;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements contained herein, it is hereby agreed as
follows:
1. EFFECTIVE DATE. The "Effective Date" shall mean the
effective date of the Merger.
2. EMPLOYMENT PERIOD. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to enter into the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the third anniversary of the
Effective Date (the "Employment Period").
3. TERMS OF EMPLOYMENT. (a) POSITION AND DUTIES. (i) (A)
During the Employment Period, the Executive shall serve as Chairman of the
Pennsylvania Division of the Company and as Vice Chairman of the Company
reporting to the Chief Executive Officer of the Company with such authority,
duties and responsibilities as are commensurate with such position and as may be
consistent with such position and (B) the Executive's services shall be
performed in Harrisburg, Pennsylvania. The Executive shall serve on the
Company's Board of Directors
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during the Employment Period. Unless the Executive's employment has been
terminated prior thereto, from the third anniversary of the Effective Date until
the Executive's 65th birthday, the Executive shall continue employment on a
part-time basis on terms reasonably agreeable to the Company and the Executive
(the "Part-Time Period").
(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 substantially all of his 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, provided that such service shall not result
in a conflict of interest or violate applicable law (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) INITIAL PAYMENT. On the Effective Date, the
Company shall make a lump sum payment to the Executive in an amount equal to
$1,250,000, provided that the Executive is employed by the Company on such date.
(ii) BASE SALARY. During the Employment Period, the Executive
shall receive an annual base salary ("Annual Base Salary") of no less than
$460,000.
(iii) ANNUAL BONUS. During the Employment Period, the
Executive shall receive an annual cash bonus ("Annual Bonus") in an amount no
less than $168,505, which is the highest annual bonus paid to the Executive by
Keystone in respect of any of the three calendar years prior to the Effective
Date (the "Minimum Bonus").
(iv) INCENTIVE AWARDS. On the Effective Date, the Company
shall grant the Executive an option to acquire 50,000 shares of the Company's
common stock (the "Options") pursuant to the terms of the Company's stock
incentive plan. Except as otherwise provided herein, the Options shall vest in
three equal installments on the first, second and third anniversaries of the
Effective Date or, if earlier, upon a change of control of the Company (as
defined in the Company's stock incentive plan). Notwithstanding anything to the
contrary, the Options shall remain exercisable for a term of 10 years, whether
or not the Executive is employed by the Company.
(v) RETIREMENT BENEFITS. Notwithstanding any other provision
of this Agreement, except upon a termination of the Executive's employment
hereunder for Cause, commencing at age 65, the Executive shall be paid an annual
retirement benefit of $350,000 for his life less any benefit payable pursuant to
Keystone's and the Company's qualified or non-
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qualified defined benefit retirement plans (the "Retirement Plans"), provided
that, in determining the amount of benefits payable to the Executive under the
Retirement Plans, the Executive shall be deemed to receive benefit payments
under each of the Retirement Plans in the form of a single life annuity for the
life of the Executive (whether or not the Executive elected to receive a life
annuity and whether or not a life annuity is available under the applicable
Retirement Plan) with the amount of the life annuity payments being calculated
using the actuarial assumptions used under the applicable plan or if such plan
does not specify the required actuarial assumptions, the actuarial assumptions
used under the M&T Bank Corporation Pension Plan (the "Retirement Benefit").
Upon the Executive's death, whether before or after attaining age 65, his
current spouse, should she survive the Executive, shall be paid an annual
benefit of 50% of the Retirement Benefit for her life.
(vi) OTHER EMPLOYEE BENEFIT PLANS. During the Employment
Period, except as otherwise expressly provided herein, the Executive shall be
entitled to participate in all employee benefit, welfare and other plans,
practices, policies and programs generally applicable to senior executives of
the Company on a basis no less favorable than that provided to such senior
executives, provided that upon the Executive's termination of employment for any
reason (other than upon a termination of the Executive's employment hereunder
for Cause), the Company shall continue to provide him and his current spouse
with medical and dental benefits for the remainder of their lives on a basis no
less favorable than those benefits were provided to them immediately prior to
such termination. The Company shall continue in effect the Split Dollar
Agreement referred to in Section 6(a)(ii) of the Executive Employment Agreement
between Keystone and the Executive dated as of June 29, 1998 (the "Prior
Agreement") and upon a termination of the Executive's employment shall release
its collateral assignment thereunder without reimbursement from the Executive of
premiums paid. The Company shall also extend the Management Stock Ownership Plan
loan for ten years under its existing terms and conditions.
(vii) EXPENSES. During the Employment Period and the Part-Time
Period, the Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in accordance with the Company's
expense reimbursement policies.
(viii) OFFICE AND SUPPORT STAFF. During the Employment Period
and the Part-Time Period, the Executive shall be entitled to an office or
offices of a size and with furnishings and other appointments as provided
generally at any time thereafter with respect to other peer executives of the
Company and its affiliated companies and shall be provided with secretarial
assistance commensurate with the Executive's position.
(ix) VACATION. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the plans, policies,
programs and practices of the Company and its affiliated companies as in effect
with respect to the senior executives of the Company.
(x) PAYMENT DURING PART-TIME PERIOD. During the Part-Time
Period, Executive shall receive an Annual Base Salary of $400,000. In the event
that the Executive should die during the Part-Time Period, his spouse, should
she survive him, shall receive a payment of $200,000 annually for the remainder
of the Part-Time Period.
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4. 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 11(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" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive 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 reasonably
acceptable to the Executive or the Executive's legal representative.
(b) CAUSE. The Company may terminate the Executive's employment during
the Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Executive by the Board or the Chief Executive Officer of the Company which
specifically identifies the manner in which the Board or Chief Executive Officer
believes that the Executive has not substantially performed the Executive's
duties, or
(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to the
Company, or
(iii) conviction of a felony or guilty or nolo contendere plea
by the Executive with respect thereto.
For purposes of this provision, 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, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer or
a senior officer of the Company or based upon 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. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than two-thirds of the entire
membership of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Executive and the Executive
is given an opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, the Executive is guilty of
the conduct described in subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
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(c) GOOD REASON. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean in the absence of a written consent of the Executive:
(i) the assignment to the Executive of any duties inconsistent
in any material respect with the Executive's position (including offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 3(a) of this Agreement, or any other action by the
Company which results in a diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive;
(ii) any failure by the Company to comply with any of the
provisions of Section 3(b) of this Agreement, other than an insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(iii) the Company's requiring the Executive to be based at any
office or location more than 35 miles from that provided in Section 3(a)(i)(B)
hereof;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement;
or
(v) any failure by the Company to comply with and satisfy
Section 10(c) of this Agreement.
For purposes of this Section 4(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause, or
by the Executive for Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with Section 11(b) of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, the date of
mailing of the Notice of Termination or any later date specified therein within
30 days of such notice, as the case may be, (ii) if the Executive's employment
is terminated by the Company other than for Cause or Disability,
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the Date of Termination shall be the date on which the Company notifies the
Executive of such termination, (iii) if the Executive's employment is terminated
by reason of death or Disability, the Date of Termination shall be the date of
death of the Executive or the Disability Effective Date, as the case may be,
(iv) if the Executive's employment is terminated by the Executive, the date
specified in the Notice of Termination, which date shall not be less than
fifteen days after the date of mailing of such Notice of Termination and (v) if
the Executive's employment has not been previously terminated, the expiration of
the Employment Period.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) GOOD REASON; OTHER
THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the
Company shall terminate the Executive's employment other than for Cause or
Disability or the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) the Executive's Annual Base Salary through
the Date of Termination to the extent not theretofore paid, and (2) the
product of (x) the Minimum Bonus and (y) a fraction, the numerator of
which is the number of days in the fiscal year in which the Date of
Termination occurs through the Date of Termination, and the denominator
of which is 365, in each case to the extent not theretofore paid (the
sum of the amounts described in clauses (1) and (2), shall be
hereinafter referred to as the "Accrued Obligations"); and
B. the amount equal to the product of (1) the number of months
and portions thereof from the Date of Termination until the end of the
Employment Period, divided by twelve and (2) the sum of (x) the
Executive's Annual Base Salary and (y) the Minimum Bonus; and
C. a lump sum in the amount of $2,000,000; and
(ii) the Options shall vest immediately; and
(iii) the Retirement Benefit shall be payable in accordance
with Section 3(b)(v); and
(iv) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliated companies through the Date of Termination (such
other amounts and benefits shall be hereinafter referred to as the "Other
Benefits").
(b) DEATH. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. In addition, the Options shall vest immediately
and the Retirement Benefit shall be payable in accordance with Section 3(b)(v).
Accrued Obligations shall be paid to the Executive's estate or beneficiary, as
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applicable, in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 5(b) shall include death benefits as in effect on the
date of the Executive's death with respect to senior executives of the Company
and their beneficiaries and that pursuant to Section 3(b)(vi) hereof cover the
Executive.
(c) DISABILITY. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits. In
addition, the Options shall vest immediately and the Retirement Benefit shall be
payable in accordance with Section 3(b)(v). Accrued Obligations shall be paid to
the Executive in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 5(c) shall include, and the Executive shall be entitled
after the Disability Effective Date to receive, disability and other benefits in
effect generally with respect to senior executives of the Company and that
pursuant to Section 3(b)(vi) hereof cover the Executive.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's employment
shall be terminated for Cause or the Executive terminates his employment without
Good Reason during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive (w) his Annual Base Salary through the Date of Termination, (x)
payment of the Retirement Benefit, and (y) Other Benefits, in each case to the
extent theretofore unpaid; provided that, notwithstanding clause (x) hereof, the
Retirement Benefit shall not be payable upon a termination of the Executive's
employment hereunder for Cause.
6. NON-EXCLUSIVITY OF RIGHTS. Except as specifically provided, 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 and for which the Executive may qualify, nor,
subject to Section 11(f), shall anything herein 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. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company or any of
its affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and, such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof provided that the Executive has
acted in good faith and that the Company is provided with such evidence of fees
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and expenses as it may reasonably require) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any payment required by this Section 7
that is not paid by the Company within fifteen days after receipt of written
notice from the Executive requesting such payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code").
8. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 8) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred by
the Executive with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing
provisions of this Section 8(a), if it shall be determined that the Executive is
entitled to a Gross-Up Payment, but that the Payments do not exceed 110% of the
greatest amount (the "Reduced Amount") that could be paid to the Executive such
that the receipt of Payments would not give rise to any Excise Tax, then no
Gross-Up Payment shall be made to the Executive and the Payments, in the
aggregate, shall be reduced to the Reduced Amount.
(b) Subject to the provisions of Section 8(c), all determinations
required to be made under this Section 8, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by the Company's
independent certified public accounting firm (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Company and the Executive
within 15 business days of the receipt of notice from the Executive that there
has been a Payment, or such earlier time as is requested by the Company. All
fees and expenses of the Accounting Firm shall be borne solely by the Company.
Any Gross-Up Payment, as determined pursuant to this Section 8, shall be paid by
the Company to the Executive within five days of the later of (i) the due date
for the payment of any Excise Tax, and (ii) the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Executive. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 8(c) and the Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be
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promptly paid by the Company to or for the benefit of the Executive. The
Executive shall report Payments on the Executive's tax returns in a manner
consistent with the Company's treatment of such payments for tax purposes.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such con-
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tested amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 8(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 8(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 8(c), a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
9. CONFIDENTIAL INFORMATION/NONSOLICITATION/NONCOMPETITION. (a) 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, which shall
have been obtained by the Executive during the Executive's employment by the
Company or any of its affiliated companies and which shall not be or become
public knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). After termination of the Executive's
employment with the Company, the Executive shall not, without the prior written
consent of the Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it.
(b) During the Part-Time Period and for five years after the Date of
Termination, the Executive will not directly or indirectly, own, manage,
operate, control or participate in the ownership, management, operation or
control of, or be connected as an officer, employee, partner, director or
otherwise with, or have any financial interest in, any business principally
engaged in the banking business and/or banking related or trust related business
anywhere within the Commonwealth of Pennsylvania. Ownership for personal
investment purposes only of less than 5% of the voting stock of any publicly
held corporation shall not constitute a violation hereof.
(c) During the Part-Time Period and for five years after the Date of
Termination, the Executive will not, directly or indirectly, on behalf of the
Executive or any other person, solicit for employment any person employed by the
Company or its affiliates as of the date hereof or known by the Executive at the
time to be employed by the Company or its affiliates or solicit any customer of
the Company or any of its affiliates.
(d) In the event of a breach or threatened breach of this Section 9,
the Executive agrees that the Company shall be entitled to injunctive relief in
a court of appropriate juris-
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diction to remedy any such breach or threatened breach, the Executive
acknowledges that damages would be inadequate and insufficient.
(e) It is expressly understood and agreed that although the Company and
the Executive consider the restrictions contained in Section 9 hereof to be
reasonable for the purpose of preserving the goodwill, proprietary rights and
going concern value of the Company, if a final judicial determination is made by
a court having jurisdiction that the time or territory or any other restriction
contained in such Section 9 is an unenforceable restriction on the Executive's
activities, the provisions of such Section 9 shall not be rendered void but
shall be deemed amended to apply as to such maximum time and territory and to
such other extent as such court may judicially determine or indicate to be
reasonable. Alternatively, if the court referred to above finds that any
restriction contained in Section 9 or any remedy provided herein is
unenforceable, and such restriction or remedy cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained therein or the availability of any other remedy.
The provisions of Section 9 shall in no respect limit or otherwise affect the
Executive's obligations under other agreements with the Company.
(f) Any termination of the Executive's employment or of this Agreement
shall have no effect on the continuing operation of this Section 9. In no event
shall an asserted violation of the provisions of this Section 9 constitute a
basis for deferring or withholding any amounts otherwise payable to the
Executive under this Agreement. The existence of any claim or cause of action of
the Executive against the Company or any of its affiliates, whether predicated
on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of the terms of this Section 9. The Executive
acknowledges and agrees that this Section 9 will not prevent the Executive from
earning a living.
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 will 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 to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
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 Pennsylvania,
without reference to 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 otherwise than
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by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications hereunder 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:
Xxxx X. Xxxxxxxx
c/o Keystone Financial, Inc.
X.X. Xxx 0000
One Keystone Plaza
Front and Market Streets
Harrisburg, Pennsylvania 17105-3660
IF TO THE COMPANY:
Xxx X. Xxxxx, Executive Vice President - Human Resources
Manufacturers and Traders Trust Company
Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
with a copy to:
General Counsel
Facsimile: (000) 000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice 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.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c)(i)-(v) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
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(f) From and after the Effective Date this Agreement shall supersede
any other employment, severance or change of control agreement between the
parties, including, without limitation, Keystone and its affiliates, with
respect to the subject matter hereof including the Prior Agreement, except as
expressly provided herein and with respect to the Executive's rights to exercise
existing Keystone stock options.
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IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its Board of Directors,
the Company has caused these presents to be executed in its name on its behalf,
all as of the day and year first above written.
/S/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxx
M&T BANK CORPORATION
By /S/ XXXX X. XXXX
-----------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
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