CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of the 24th day of January, 2001, by and between XXXX X. XxXXXX, XX.
("Executive") and BANK OF AMERICA CORPORATION, a Delaware corporation ("Bank of
America").
STATEMENT OF PURPOSE
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Executive has served as Bank of America's Chief Executive Officer for
numerous years and in that role has had primary responsibility for establishing
Bank of America's long-term strategic goals. Executive is retiring from his
employment with Bank of America effective April 25, 2001 with the consent of the
Board of Directors of Bank of America. Bank of America desires to continue to
have the benefit of the advice, counsel and services of Executive following his
retirement as described herein. In addition, Executive has acquired extensive
knowledge of Bank of America's business methods, customers and employees, and
the parties therefore desire to restrict the activities of Executive in
retirement as set forth herein in an effort to protect Bank of America's
legitimate business interests.
NOW, THEREFORE, in consideration of the foregoing Statement of Purpose
and the mutual covenants herein contained, Bank of America and Executive agree
as follows:
1. Consulting Services. During the Term (as defined herein), Executive
shall stand ready and shall furnish to Bank of America such reasonable services
of an advisory or consulting nature with respect to its business and affairs as
Bank of America may reasonably call upon him to furnish and his health and other
business commitments may permit, including without limitation the following: (i)
consultations regarding Bank of America strategic initiatives, (ii) assistance
in the transition of matters that carry over from his term of employment and
(iii) representation as an ambassador of Bank of America to its customers, the
financial services industry, the government and other constituencies. In
providing services hereunder, the parties acknowledge and agree that (A)
Executive shall be available for the Term upon reasonable notice and at
reasonable times for periodic consultations, either in person or by telephone,
(B) in performing consulting services hereunder, Executive shall not be an
employee of Bank of America but shall act in the capacity of independent
contractor, and (C) Executive shall not be required to render such services
during reasonable vacation periods or times of illness, disability or other
incapacity.
2. Noncompetition.
(a) Definitions. Capitalized terms used herein shall have the meanings
set forth below:
"Affiliate" means (i) any entity directly or
indirectly controlling (including without limitation an entity
for which Executive serves as an officer, director, employee,
consultant or other agent), controlled by, or under common
control with Executive, and (ii) each other entity in which
Executive, directly or indirectly, owns any controlling
interest or of which Executive serves as a general partner.
"Company" means, collectively, (i) Bank of America,
(ii) any corporation, partnership or other business entity
that is, directly or indirectly, controlled by or under common
control with Bank of America and (iii) their respective
successors.
"Competition" means Executive's engaging in, or
otherwise directly or indirectly being employed by or acting
as a consultant or lender to, or being a director, officer,
employee, principal, agent, stockholder (other than as
specifically provided for herein), member, owner or partner of
any company or business operation specified below:
(i) any company which is, or is a direct or
indirect subsidiary of, one of the twenty-five (25)
largest bank holding companies headquartered in the
United States (as measured by asset size) or any of
the ten largest investment banking companies
headquartered in the United States (as measured by
capital); or
(ii) any business operation of any company
in the financial services industry if such business
operation is then in substantial and direct
competition with a principal business operation of
the Company in which the Company is engaged during
the Term and if the financial services company has
total revenues of $500 million or more annually.
(b) Covenants.
(i) Noncompetition. During the Term, Executive shall not
engage in Competition with the Company in any
locality or region of the United States in which the
Company has operations; provided, however, that it
shall not be a violation of this paragraph 2(b)(i)
for Executive to (A) become the registered or
beneficial owner of up to five percent (5%) of any
class of the capital stock of a competing corporation
registered under the Securities Exchange Act of 1934,
as amended, provided that Executive does not actively
participate in the business of such corporation until
such time as this covenant expires; or (B) engage in
any other activities as approved in writing in
advance by the Chief Executive Officer of Bank of
America.
(ii) Trade Secrets and Confidential Information. Executive
hereby agrees that he will hold in a fiduciary
capacity for the benefit of the Company, and shall
not directly or indirectly use or disclose any Trade
Secret, as defined hereinafter, that Executive may
have acquired during the term of his employment by
the Company or during the Term of this Agreement for
so long as such
information remains a Trade Secret. The term "Trade
Secret" as used in this Agreement shall mean
information including, but not limited to, technical
or nontechnical data, a process, financial data,
financial plans, product plans, or a list of actual
or potential customers or suppliers which derives
economic value, actual or potential, from not being
generally known to, and not being readily
ascertainable by proper means by, other persons who
can obtain economic value from its disclosure or use;
and is the subject of reasonable efforts by the
Company to maintain its secrecy.
In addition to the foregoing and not in limitation
thereof, Executive agrees that during the Term he
will hold in a fiduciary capacity for the benefit of
the Company and shall not directly or indirectly use
or disclose, any Confidential or Proprietary
Information, as defined hereinafter, that Executive
may have acquired (whether or not developed or
compiled by Executive and whether or not Executive
was authorized to have access to such Information)
during the term of, in the course of or as a result
of his employment by the Company or during the Term
of this Agreement. The term "Confidential or
Proprietary Information" as used in this Agreement
means any secret, confidential or proprietary
information of the Company not otherwise included in
the definition of "Trade Secret" above. The term
"Confidential and Proprietary Information" does not
include information that has become generally
available to the public by the act of one who has the
right to disclose such information without violating
any right of the Company.
(c) Reasonable and Necessary Restrictions. Executive acknowledges that
the restrictions, prohibitions and other provisions of this paragraph 2 are
reasonable, fair and equitable in scope, term and duration, are necessary to
protect the legitimate business interests of Bank of America, and are a material
inducement to Bank of America to enter into this Agreement. Executive covenants
that Executive will not challenge the enforceability of this paragraph 2 nor
will Executive raise any equitable defense to its enforcement.
(d) Remedies. Executive acknowledges that the obligations undertaken by
Executive pursuant to this paragraph 2 are unique and that Bank of America
likely will have no adequate remedy at law if Executive shall fail to perform
any of Executive's obligations hereunder, and Executive therefore confirms that
Bank of America's right to specific performance of the terms of this paragraph 2
is essential to protect the rights and interests of Bank of America.
Accordingly, in addition to any other remedies that Bank of America may have at
law or in equity, Bank of America shall have the right to have all obligations,
covenants, agreements and other provisions of this paragraph 2 specifically
performed by Executive, and Bank of America shall have the right to obtain
preliminary and permanent injunctive relief to secure specific performance and
to prevent a breach or contemplated breach of this paragraph 2 by Executive, and
Executive submits to the jurisdiction of the courts of the State of Delaware for
this purpose. In addition, in the event Executive breaches any provision of this
paragraph 2, Executive shall forfeit and have no right to receive any benefits
under this Agreement from and after the date of such breach.
(e) Operations of Affiliates. Executive agrees that he will refrain
from (i) authorizing any Affiliate to perform or (ii) assisting in any manner
any Affiliate in performing any activities that would be prohibited by the terms
of this paragraph 2 if they were performed by Executive.
3. Consideration. During the Term, so long as Executive is complying
with the terms and conditions of this Agreement, Bank of America shall provide
Executive with the following benefits in consideration of Executive's obligation
to be available to and to render advisory and consulting services pursuant to
the provisions of paragraph 1 and Executive's covenants set forth in paragraph
2: (i) an office, administrative support and parking at Bank of America's
offices in Charlotte, North Carolina; and (ii) access to a Bank of America owned
or provided aircraft for personal use for up to one hundred fifty (150) hours
per year. In that regard, Executive may bring such number of additional
passengers on such aircraft as available seating permits, and Executive need not
be one of the passengers. Executive acknowledges that the value of such access
to aircraft described in clause (ii) above shall be taxable to Executive in
accordance with applicable laws. In addition, Bank of America shall reimburse
Executive for any reasonable out-of-pocket business expenses, including travel,
lodging and meals, incurred by Executive in performing the services described in
paragraph 1 above.
4. Term. The initial term of the Agreement (the "Initial Term") shall
commence as of the effective date of Executive's retirement from Bank of America
and shall continue in effect until the fifth anniversary of such retirement.
Unless either party provides the other with at least sixty (60) days' advance
written notice of termination of the Agreement as of the end of the Initial
Term, the Agreement shall thereafter be automatically extended for additional
one (1) year periods (each a "Renewal Term") unless, at least sixty (60) days
prior to the end of any such Renewal Term, either party provides the other party
with written notice of termination to be effective at the end of such Renewal
Term. Notwithstanding the foregoing, the Agreement shall automatically terminate
in the case of Executive's death or permanent inability due to physical or
mental incapacity to provide the services contemplated by this Agreement. For
purposes of this Agreement, "Term" means collectively the Initial Term and any
Renewal Term.
5. Miscellaneous.
(a) Notice. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing and may be delivered
personally, by intraoffice mail, by fax or by mail to such address and directed
to such person(s) as Bank of America may notify Executive from time to time; and
to Executive, at Executive's address as shown on the records of Bank of America,
or at such other address as Executive, by notice to Bank of America, may
designate in writing from time to time.
(b) Entire Agreement. This Agreement contains the entire agreement
between Bank of America and Executive with respect to the subject matter hereof,
and no amendment, modification or cancellation hereof shall be effective unless
the same is in writing and executed by the parties hereto (or by their
respective duly authorized representatives).
(c) Applicable Law. This Agreement shall be enforced, interpreted and
construed under the laws of the State of Delaware, notwithstanding any
conflict-of-laws doctrines of such
state or any other jurisdiction to the contrary, and without the aid of any
canon, custom or rule requiring construction against the draftsman.
(d) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, and their respective heirs, executors,
administrators, legal representatives, successors and assigns, if any.
(e) Captions. The captions and headings set forth in this Agreement are
for convenience of reference only and shall not be construed as a part of this
Agreement.
(f) Multiple Originals. This Agreement is executed in multiple
originals, each of which shall be deemed an original hereof.
IN WITNESS WHEREOF, Executive has hereunto set his hand and seal, and
Bank of America has caused this Agreement to be executed by its duly authorized
representative, all as of the day and year first above written.
/s/ Xxxx X. XxXxxx, Xx.
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Xxxx X. XxXxxx, Xx.
"Executive"
BANK OF AMERICA CORPORATION
By: /s/ X. X. Xxxxxx
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Name: X. X. Xxxxxx
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Title: CORPORATE PERSONNEL EXECUTIVE
"Bank of America"
