EMPLOYMENT AGREEMENT
AGREEMENT by and between The Quick & Reilly Group, Inc., a Delaware
corporation (the 'Company') and Thomas C. Quick (the 'Executive'), dated as of
the 16th day of September, 1997.
1. Employment Period. Subject to the consummation of the transactions
contemplated by the Agreement and Plan of Merger among the Company, Fleet
Financial Group, Inc. ('Fleet Financial') and Fleet Securities, Inc. ('Fleet
Securities') dated as of September 16, 1997 (the 'Merger Agreement'), the
Company hereby agrees to employ the Executive, and the Executive hereby agrees
to serve the Company subject to the terms and conditions of this Agreement, for
the period commencing on the closing date of the transactions contemplated by
the Merger Agreement (the 'Commencement Date') and ending on the fifth
anniversary thereof (the 'Employment Period').
2. Terms of Employment. (a) Position and Duties. (i) During the Employment
Period, the Executive shall serve in the capacity and with the reporting
relationship set forth on Exhibit A hereto with such authority, duties and
responsibilities as are commensurate with such position and as are consistent
with the Executive's authority, duties and responsibilities as in effect
immediately prior to the Commencement Date. The Executive shall serve on the
Executive Management Committee (the 'Committee') of the Quick & Reilly division
of the Company (including Fleet Financial's brokerage business and investment
counselors sales business) (the 'Q&R Division') which Committee shall have
responsibility for the operations of the Company and its subsidiaries,
including, without limitation, the determination of the Company's and its
subsidiaries', compensation policies. The Executive's duties shall be performed
in New York, New York.
(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 full attention and time during normal business hours to the
business and affairs of the Company and to use the Executive's reasonable best
efforts to perform such responsibilities in a professional manner. It shall not
be a violation of this Agreement for the Executive to (A) serve on corporate,
civic or charitable boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (C) manage personal
investments, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and agreed that to
the extent that any such activities have been conducted by the Executive prior
to the Commencement Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
Commencement Date shall not thereafter be deemed to interfere with the
performance of the Executive's responsibilities to the Company.
(b) Compensation. (i) Base Salary and Annual Bonus. During the
Employment Period, the Executive shall receive an annual base salary (the
'Annual Base Salary') of $350,000 and, for each of calendar years 1998 and 1999,
an annual cash bonus (the 'Annual Bonus') of $1,400,000, such that the sum of
the Annual Base Salary and the Annual Bonus shall
be equal to the greater of (A) $1,750,000 (the 'Total Compensation Guarantee')
and (B) the sum of the Annual Base Salary and Annual Bonus as determined by the
Committee in accordance with the Company's historic compensation plans and
practices including, but not limited to, the Company's Profit Sharing Bonus
Plan, as in effect immediately prior to the Commencement Date, as determined by
the Committee (the 'Bonus Plan'). During the remainder of the Employment Period,
the Executive shall receive an Annual Bonus as determined by the Committee in
accordance with the Company's historic compensation plans and practices
including, but not limited to, the Bonus Plan.
(ii) Base Retention and Performance Payments. Subject to the
terms and conditions set forth below, the Executive shall be entitled to receive
payments based on the Executive's continued employment with the Company and on
the Company's growth in an aggregate amount of $4,166,700 (the 'Aggregate Base
Payment'). The portion of the Aggregate Base Payment relating to retention shall
equal $2,083,350 (the 'Retention Bonus'), and the portion of the Aggregate Base
Payment relating to the Company's growth shall equal $2,083,350 (the
'Performance Bonus'). The Retention Bonus shall vest ratably over a three-year
period commencing on January 1, 1998 and shall be payable in three equal
installments of $694,450 for each of the calendar years ending on December 31 of
1998, 1999 and 2000, with actual payment to be made no later than February 28 of
the following year. The Performance Bonus shall be payable in three equal
installments of $694,450 for each of the calendar years ending on December 31 of
1998, 1999 and 2000, with actual payment to be made no later than February 28 of
the following year, based on the achievement by the Company on a consolidated
basis with its subsidiaries of Pre-Tax Income (as defined below) of at least
$183,700,000 for calendar year 1998, at least $202,070,000 for calendar year
1999 and at least $222,277,000 for calendar year 2000, with $694,450 being paid
with respect to each year with respect to which such Pre-Tax Income target is
met. 'Pre-Tax Income' shall mean the pre-tax income of the Q&R Division on a
consolidated basis determined in accordance with U.S. generally accepted
accounting principles (to the extent consistent with the functional reporting
required herein) without taking into account any one-time charges and expenses
related to the Merger (as defined in the Merger Agreement) (the 'Merger'), any
one-time severance, restructuring or similar charges, and any expenses or
charges in the nature of management fees, overhead allocations or any similar
service or other similar fees payable or allocable to Fleet Financial or any of
its affiliated companies by the Q&R Division, including, but not limited to the
$40,000,000 pool payable with respect to the Base Retention and Performance
Payments and the $40,000,000 pool payable with respect to the Incentive Bonus
payments, except to the extent that Fleet Financial or any of its affiliated
companies provide services to the Q&R Division (e.g., payroll services, data
processing services) on terms reasonably acceptable to the Committee. In the
event that Fleet Financial reduces the capital of the Q&R Division below $425
million, the Company agrees that such Pre-Tax Income targets will be equitably
adjusted to reflect the loss of earnings from such withdrawn capital. Equitable
adjustments shall also be made in the event of any acquisitions, dispositions or
similar transactions. In determining Pre-Tax Income, it is assumed that the Q&R
Division's core business will be run consistent with past practice. If the
Company shall terminate the Executive's employment other than for Cause,
including by reason of the Executive's death or Disability, or the Executive
shall terminate employment for Good Reason, any unpaid portion of the Aggregate
Base Payment shall become fully vested and immediately payable.
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(iii) Incentive Bonus. Based on the terms set forth in this
Section 2(b)(iii), the Executive shall be entitled to receive special incentive
bonus payments from the aggregate bonus pool of $40,000,000 (the 'Incentive
Bonus Pool'), with the actual payment amounts to be determined in the sole
discretion of the Chairman of the Company (the 'Incentive Bonus'). One-third of
the Incentive Bonus Pool (the 'Maximum Payout') shall be payable on February 28,
2001, if the average Pre-Tax Income of the Company for the years 1998, 1999 and
2000 ('First Period Pre-Tax Income') is at least $265,286,458. If First Period
Pre-Tax Income is less than $243,152,000, no Incentive Bonus shall be payable on
February 28, 2001. If First Period Pre-Tax Income is equal to $243,152,000,
one-sixth of the Incentive Bonus Pool (the 'Minimum Payout') shall be payable.
If First Period Pre-Tax Income is greater than $243,152,000 but less than
$265,286,458, the portion of the Incentive Bonus Pool that is payable shall
equal the Minimum Payout plus the product of (A) the difference between the
Maximum Payout, and the Minimum Payout and (B) a fraction, the numerator of
which is equal to the amount by which First Period Pre-Tax Income exceeds
$243,152,000 and the denominator equal to 22,134,458. The Maximum Payout shall
be payable on February 28, 2002, if the average Pre-Tax Income of the Company
for the years 1999, 2000 and 2001 ('Second Period Pre-Tax Income') is at least
$331,608,073. If Second Period Pre-Tax Income is less than $291,782,400, no
Incentive Bonus shall be payable on February 28, 2001. If Second Period Pre-Tax
Income is equal to $291,782,400, the Minimum Payout shall be payable. If Second
Period Pre-Tax Income is greater than $291,782,400 but less than $331,608,073,
the portion of the Incentive Bonus Pool that is payable shall equal the Minimum
Payout plus the product of (A) the difference between the Maximum Payout and the
Minimum Payout and (B) a fraction, the numerator of which is equal to the amount
by which First Period Pre-Tax Income exceeds $291,782,400 and the denominator
equal to 39,825,673. The Maximum Payout shall be payable on February 28, 2002,
if the average Pre-Tax Income of the Company for the years 1999, 2000 and 2001
('Third Period Pre-Tax Income') is at least $414,510,091. If Third Period
Pre-Tax Income is less than $350,138,880, no Incentive Bonus shall be payable on
February 28, 2002. If Third Period Pre-Tax Income is equal to $350,138,880, the
Minimum Payout shall be payable. If Third Period Pre-Tax Income is greater than
$350,138,880 but less than $414,510,091, the portion of the Incentive Bonus Pool
that is payable shall equal the Minimum Payout plus the product of (A) the
difference between the Maximum Payout and the Minimum Payout and (B) a fraction,
the numerator of which is equal to the amount by which Third Period Pre-Tax
Income exceeds $350,138,880 and the denominator equal to 64,371,211. The Company
may, in its sole discretion, pay out any remaining unpaid portion of the
Incentive Bonus at any time, discounted to present value at a rate of 15% in
satisfaction of its obligations pursuant to this Section 2(b)(iii) (the 'Buyout
Option').
(iv) Savings and Retirement Plans. During the Employment
Period, the Executive shall be eligible to participate in all savings and
retirement plans, practices, policies and programs of the Company in which the
Executive participated immediately prior to the Commencement Date, or, in the
Executive's sole discretion, to the extent permitted by law and provided that
the Executive's participation shall not cause any such plan to lose its
tax-qualified status, such plans as are generally applicable to peer executives
of Fleet Financial and its affiliated companies, other than the Company, (the
'Fleet Plans'), provided, that in no event shall the Executive be entitled to
receive duplicate benefits. For purposes of all Fleet Plans which the Executive
elects to participate in, the Executive shall receive full credit for all prior
service with
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the Company for purposes of eligibility to participate and receive benefits and
vesting but not for benefit accruals in any Fleet retirement plan.
(v) Welfare and Other Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family, as the case may be, shall
be eligible for participation in and shall receive all benefits under welfare,
fringe, change of control protection, vacation and other similar benefit plans,
practices, policies and programs provided by the Company (including, without
limitation, medical, prescription, dental, disability, employee life, group
life, accidental death and travel accident insurance plans and programs), or, in
the Executive's sole discretion, to the extent permitted by law and provided
that the Executive's participation shall not cause any such plan to lose its
tax-qualified status, such Fleet Plans as are generally applicable to peer
executives of Fleet Financial and its affiliated companies. With respect to
Fleet Financial's welfare benefit plans which the Executive elects to
participate in, Fleet Financial shall cause any Fleet Plan to waive any
preexisting condition exclusions and actively-at-work requirements thereunder
with respect to the Executive and the Executive's eligible dependents and shall
ensure that any covered expenses incurred on or before the date the Executive's
and/or the Executive's family's participation commences shall be taken into
account for purposes of satisfying applicable deductible, coinsurance and
maximum out-of-pocket provisions after the date participation commences.
(vi) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable business,
travel and entertainment expenses incurred by the Executive, in accordance with
the policies of the Company as in effect immediately prior to the Commencement
Date.
(vii) Fringe Benefits. During the Employment Period, the
Executive shall be entitled to fringe benefits, including, without limitation,
payment of the annual dues and fees for the Executive's membership at the clubs
of the Executive's choice and the Company's continued sponsorship of a
charitable contribution policy, on the same basis as was provided immediately
prior to the Commencement Date. In addition, the Executive shall have use of the
Company's corporate aircrafts and the Company shall make the Executive whole for
any taxes payable by the Executive as a result of personal use of any such
corporate aircraft, each on the same basis as was provided immediately prior to
the Commencement Date.
(viii) Split-Dollar Life Insurance. During the Employment
Period, the Company shall pay the premiums for the cost of a split-dollar life
insurance policy in effect for the benefit of the Executive, on the same basis
as was provided immediately prior to the Commencement Date.
(ix) New York Stock Exchange Seat. Immediately prior to the
Commencement Date, the Company shall take all necessary actions to sell to the
Executive a seat on the New York Stock Exchange at a purchase price of
$1,000,000, which the Executive shall lease back to the Company immediately
following the Commencement Date for an annual price of $160,000 based on terms
and conditions that are no less favorable to the Executive than those obtainable
in an arm's length transaction.
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(x) Indemnity. The Executive shall be indemnified by the
Company against claims arising in connection with the Executive's status as an
employee, officer, director or agent of the Company in accordance with the
Company's indemnity policies for its senior executives, subject to applicable
law.
(xi) Vacation. During each year of the Employment Period, the
Executive shall be entitled to paid vacation in accordance with the Company's
vacation policy for senior executives as in effect immediately prior to the
Commencement Date.
3. 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 10(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 business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative.
(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) any conviction of, or a plea of guilty or no contest to,
any charge of embezzlement, theft or fraudulent act, or any felony, which would
reasonably be expected to be materially detrimental to the business, operations,
reputation or financial condition of the Company, or
(ii) any material breach by the Executive of Section 7 hereof,
provided that, to the extent any such breach is curable, the Company shall give
the Executive notice thereof and a reasonable opportunity to cure, or
(iii) continued failure to perform or habitual neglect of or
willful misconduct in performing the duties that the Executive is required to
perform under this Agreement (after the Company has given the Executive notice
thereof and a reasonable opportunity to cure), or
(iv) if the Executive commits any material act of fraud in the
performance of his duties during the course of his employment.
Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to the Executive a copy
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of a resolution duly adopted by the Board of Directors of the Company at a
meeting of the Board of Directors of the Company called and held for such
purpose (after reasonable notice to the Executive and an opportunity for the
Executive, together with the Executive's counsel, to be heard before the Board
of Directors of the Company), finding that in the good faith opinion of the
Board of Directors of the Company, the Executive was guilty of the conduct set
forth in clause (i) or (ii) of this Section 3(b) and specifying the particulars
thereof.
(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 a material breach by the Company of any material provision of this
Agreement, after the Executive has provided the Company with notice thereof and
a reasonable opportunity to cure such breach.
(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 10(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 if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (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.
4. Obligations of the Company upon Termination. (a) Good Reason; Other
Than for Cause. If, during the Employment Period, the Company shall terminate
the Executive's employment other than for Cause, including by reason of the
Executive's death 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 amounts
set forth in clauses A and B below:
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A. the sum of (1) the Executive's Annual Base Salary through
the Date of Termination to the extent not theretofore paid, (2) the
product of (x) the Total Compensation Guarantee (less any Annual
Base Salary paid from January 1 of the year of termination through
the Date of Termination and any Annual Base Salary payable pursuant
to clause (1) above) and (y) a fraction (the 'Proration Fraction'),
the numerator of which is the number of days in the current calendar
year through the Date of Termination, and the denominator of which
is 365 and (3) any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) to the
extent not theretofore paid (the sum of the amounts described in
clauses (1), (2), and (3) shall be hereinafter referred to as the
'Accrued Obligations'); and
B. the amount equal to the product of (1) the number of years
(including fractions thereof) remaining from the Date of Termination
until the end of the Employment Period and (2) the Total
Compensation Guarantee; and
(ii) any unpaid portion of the Aggregate Base Payment shall become
fully vested and immediately payable;
(iii) 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 entitled to
receive under any plan, program, policy or practice or contract or
agreement of the Company and its affiliated companies but excluding
payments pursuant to Section 2(b)(iii) and payments pursuant to severance
plans (such other amounts and benefits shall be hereinafter referred to as
the 'Other Benefits').
(b) Cause; Other than for Good Reason. If the Executive's employment
shall be terminated for Cause or the Executive terminates 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 (x) Accrued Obligations less the amount determined under Section
4(a)(i)A(2) hereof, and (y) Other Benefits, in each case to the extent
theretofore unpaid.
5. Certain Additional Payments by the Company. (a) Anything in this
Agreement to the contrary notwithstanding, in the event that the Executive's
employment is terminated by the Company without Cause or by the Executive for
Good Reason or the Company exercises its Buyout Option and 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 5) (a 'Payment')
would be subject to the excise tax imposed by Section 4999 of the Code or any
corresponding provisions of state or local tax laws, 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
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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.
(b) Subject to the provisions of Section 5(c), all determinations
required to be made under this Section 5, 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 Price
Waterhouse LLP or such other certified public accounting firm as may be
designated by the Executive (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 5, shall be paid by the
Company to the Executive within five days of 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 5(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 promptly paid by the Company to or for the
benefit of the Executive.
(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 the Executive 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
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(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 5(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 sue 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 sue 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 contested 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 5(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 5(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 5(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.
6. Arbitration. The Company and the Executive agree that any disputes with
respect to this Agreement shall be subject to binding arbitration in New York,
New York in accordance with the rules of the New York Stock Exchange. The
proceedings and the results of such arbitration shall be treated as confidential
information subject to Section 7(a) hereof. The Company agrees to pay for the
costs of arbitration and shall reimburse the Executive for the Executive's
reasonable attorney's fees.
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7. Confidential Information/Noncompetition/Nonsolicitation. (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
(provided the Company has been given notice of and opportunity to challenge or
limit the scope of disclosure purportedly so required), communicate or divulge
any such information, knowledge or data to anyone other than the Company and
those designated by it.
(b) While employed by the Company and its affiliated companies,
and in the event of a termination of the Executive's employment hereunder for
any reason (other than termination by the Company without Cause), for one year
thereafter, 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 which is in competition with the
business conducted by the Company in any geographic area where such business is
being conducted during such period. 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) While employed by the Company or any of its affiliated companies
and for one year after the Executive's termination of employment, the Executive
will not, directly or indirectly, solicit for employment by other than the
Company any person employed by the Company or its affiliated companies at the
effective time of the Merger, nor will the Executive, directly or indirectly,
solicit for employment by other than the Company any person known by the
Executive to be employed at the time by the Company or its affiliated companies.
(d) The provisions of Section 7(b) and (c) shall remain in full
force and effect until the expiration of the period specified herein
notwithstanding the earlier termination of the Executive's employment hereunder.
8. Specific Performance. The Executive acknowledges that a violation on
the Executive's part of any of the covenants contained in Section 7 hereof would
cause immeasurable and irreparable damage to the Company. Accordingly, the
Executive agrees that the Company shall be entitled to injunctive relief in any
court of competent jurisdiction for any actual or threatened violation of any
such covenant in addition to any other remedies it may have. The Executive
agrees that in the event that any arbitrator or court of competent jurisdiction
shall finally hold that any provision of Section 7 hereof is void or constitutes
an unrestriction against the Executive, the provisions of such Section 7 shall
not be rendered void but shall apply to such extent as such arbitrator or court
may determine constitutes a reasonable restriction under the circumstances.
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9. 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.
10. Miscellaneous. (a) This Agreement shall be governed by and construed
in accordance with the laws of the State of [New York], 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 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:
If to the Company: Fleet National Bank
75 State Street, 33rd Floor
Boston, MA 02110
Attention: General Counsel
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 Company's obligation to make the payments provided for in
this Agreement and otherwise to perform 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, other than
claims for a breach of Section 7 of this Agreement. 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.
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(d) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(e) 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.
(f) On and after the Commencement Date, this Agreement shall
supersede any other agreement between the parties or between the Company and the
Executive with respect to the subject matter hereof.
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EXHIBIT A
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Executive's Name: Thomas C. Quick
Position: President, Chief Operating Officer - The Quick
& Reilly Group, Inc.
Reporting Relationship: Chief Executive Officer of Quick & Reilly
Group, Inc. and the Vice Chairman or equivalent
officer of Fleet Financial Group, Inc.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from the Board of Directors, the Company has
caused these presents to be executed in its names on its behalf, all as of the
day and year first above written.
/s/ Thomas C. Quick
------------------------------------
THOMAS C. QUICK
THE QUICK & REILLY GROUP, INC.
/s/ Leslie C. Quick, Jr.
------------------------------------
By: Leslie C. Quick, Jr.
Title: Chairman of the Board and
Chief Executive Officer