{"id":38613,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-of-control-agreement-fleet-boston-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-of-control-agreement-fleet-boston-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-of-control-agreement-fleet-boston-corp.html","title":{"rendered":"Change of Control Agreement &#8211; Fleet Boston Corp."},"content":{"rendered":"<pre>\n                                    AGREEMENT\n\n         AGREEMENT by and between FLEET BOSTON CORPORATION, a Rhode Island\ncorporation (the 'Company'), and [     ] (the 'Executive'), dated as of \nOctober 1, 1999.\n\n         WHEREAS, the Board of Directors of the Company (the 'Board') has\ndetermined that it is in the best interests of the Company and its stockholders\nto assure that the Company will have the continued dedication of the Executive,\nnotwithstanding the possibility, threat or occurrence of a Change of Control (as\ndefined in Section 2) of the Company. The Board believes it is imperative to\ndiminish the inevitable distraction of the Executive by virtue of the personal\nuncertainties and risks created by a pending or threatened Change of Control and\nto encourage the Executive's full attention and dedication to the Company\ncurrently and in the event of any threatened or pending Change of Control, and\nto provide the Executive with compensation and benefits arrangements upon a\nChange of Control which ensure that the compensation and benefits expectations\nof the Executive will be satisfied and which are competitive with those of other\nbank holding companies. Therefore, in order to accomplish these objectives, the\nBoard caused the Company to enter into an Agreement with the Executive.\n\n         NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:\n\n         1.       Certain Definitions.\n\n                  (a) The 'Effective Date' shall be the first date during the\n'Change of Control Period' (as defined in Section 1(b)) on which a Change of\nControl occurs. Anything in this Agreement to the contrary notwithstanding, if\nthe Executive's employment with the Company is terminated or the Executive\nceases to be an officer of the Company prior to the date on which a Change of\nControl occurs, and it is reasonably demonstrated that such termination of\nemployment (1) was at the request of a third party who has taken steps\nreasonably calculated to effect the Change of Control or (2) otherwise arose in\nconnection with or anticipation of the Change of Control, then for all purposes\nof this Agreement the 'Effective Date' shall mean the date immediately prior to\nthe date of such termination of employment.\n\n                  (b) The 'Change of Control Period' is the period commencing on\nthe date hereof and ending on the earlier to occur of (x) the third anniversary\nof such date and (y) the Executive's normal retirement under the Fleet Boston\nCorporation Pension Plan or similar BankBoston Plan in which the Executive is a\nparticipant ('Normal Retirement Date'); provided, however, that commencing on\nthe date one year after the date hereof, and on each annual anniversary of such\ndate (such date and each annual anniversary thereof is hereinafter referred to\nas the 'Renewal Date'), the Change of Control Period shall be automatically\nextended without any further action by the Company or the Executive so as to\nterminate three years from such Renewal Date; provided, however, that if either\nthe Company or the Executive shall give notice in writing to the other, 120 days\nprior to the Renewal Date, stating that the Change of Control Period shall not\nbe extended, then the Change of Control Period shall expire three years from the\ndate hereof, or if later, three years from the last effective Renewal Date.\n\n\n                                       1\n\n\n\n\n         2.       Change of Control.  For the purpose of this Agreement, a\n'Change of Control' shall mean:\n\n                  (a) The acquisition, other than from the Company, by any\nindividual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Securities Exchange Act of 1934, as amended (the 'Exchange Act')) of\nbeneficial ownership (within the meaning of Rule 13d-3 promulgated under the\nExchange Act) of 25% or more of the then outstanding shares of common stock of\nthe Company (the 'Outstanding Company Common Stock'); provided, however, that\nany acquisition by the Company or its subsidiaries, or any employee benefit plan\n(or related trust) of the Company or its subsidiaries, of 25% or more of the\nOutstanding Company Common Stock shall not constitute a Change of Control; and\nprovided, further that any acquisition by a corporation with respect to which,\nfollowing such acquisition, more than 50% of the then outstanding shares of\ncommon stock of such corporation is then beneficially owned, directly or\nindirectly, by all or substantially all of the individuals and entities who were\nthe beneficial owners of the Outstanding Company Common Stock immediately prior\nto such acquisition in substantially the same proportion as their ownership\nimmediately prior to such acquisition of the Outstanding Company Common Stock,\nshall not constitute a Change of Control; or\n\n                  (b) Individuals who, as of the date of this Agreement,\nconstitute the Board (the 'Incumbent Board') cease for any reason to constitute\nat least a majority of the Board, provided that any individual becoming a\ndirector subsequent to the date of this Agreement whose election, or nomination\nfor election by the Company's stockholders, was approved by a vote of at least a\nmajority of the directors then comprising the Incumbent Board shall be\nconsidered as though such individual were a member of the Incumbent Board, but\nexcluding, for this purpose, any such individual whose initial assumption of\noffice is in connection with an actual or threatened election contest relating\nto the election of the Directors of the Company (as such terms are used in Rule\n14a-11 of Regulation 14A promulgated under the Exchange Act); or\n\n                  (c) Consummation of a reorganization, merger, consolidation,\nsale or other disposition of all or substantially all of the assets of the\nCompany (a 'Business Combination'), in each case, with respect to which all or\nsubstantially all of the individuals and entities who were the beneficial owners\nof the Outstanding Company Common Stock immediately prior to such Business\nCombination do not, following such Business Combination, beneficially own,\ndirectly or indirectly, more than 50% of the then outstanding shares of common\nstock of the corporation resulting from such a Business Combination (including,\nwithout limitation, a corporation which as a result of such transaction owns the\nCompany or all or substantially all of the Company's assets either directly or\nthrough one or more subsidiaries).\n\n                  (d) Approval by the stockholders of the Company of a complete\nliquidation or dissolution of the Company.\n\n                  Anything in this Agreement to the contrary notwithstanding, if\nan event that would, but for this paragraph, constitute a Change of Control\nresults from or arises out of a purchase or other acquisition of the Company,\ndirectly or indirectly, by a corporation or other entity in which the Executive\nhas a greater than ten percent (10%) direct or indirect equity interest, such\nevent shall not constitute a Change of Control.\n\n\n                                       2\n\n\n         3. Employment Period. Subject to the terms and conditions hereof, the\nCompany hereby agrees to continue the Executive in its employ, and the Executive\nhereby agrees to remain in the employ of the Company, for the period commencing\non the Effective Date and ending on the earlier to occur of (x) the last day of\nthe twenty-fourth month following the month in which the Effective Date occurs,\nand (y) the Executive's Normal Retirement Date (the 'Employment Period').\n\n         4. Terms of Employment.\n\n                  (a) Position and Duties.\n\n                           (i) During the Employment Period, (A) the Executive's\n         position (including status, offices, titles and reporting\n         requirements), authority, duties and responsibilities shall be at least\n         commensurate in all material respects with the most significant of\n         those held, exercised and assigned at any time during the 90-day period\n         immediately preceding the Effective Date and (B) the Executive's\n         services shall be performed at the location where the Executive was\n         employed immediately preceding the Effective Date or any office or\n         location less than 35 miles from such location.\n\n                           (ii) During the Employment Period, and excluding any\n         periods of vacation and sick leave to which the Executive is entitled,\n         the Executive agrees to devote reasonable attention and time during\n         normal business hours to the business and affairs of the Company and,\n         to the extent necessary to discharge the responsibilities assigned to\n         the Executive hereunder, to use the Executive's reasonable best efforts\n         to perform faithfully and efficiently such responsibilities. During the\n         Employment Period it shall not be a violation of this Agreement for the\n         Executive to (A) serve on corporate, civic or charitable boards or\n         committees, (B) deliver lectures, fulfill speaking engagements or teach\n         at educational institutions and (C) manage personal investments, so\n         long as such activities do not significantly interfere with the\n         performance of the Executive's responsibilities as an employee of the\n         Company in accordance with this Agreement. It is expressly understood\n         and agreed that to the extent that any such activities have been\n         conducted by the Executive prior to the Effective Date, the continued\n         conduct of such activities (or the conduct of activities similar in\n         nature and scope thereto) subsequent to the Effective Date shall not\n         thereafter be deemed to interfere with the performance of the\n         Executive's responsibilities to the Company.\n\n                  (b)      Compensation.\n\n                           (i) Base Salary. During the Employment Period, the\n         Executive shall receive an annual base salary ('Annual Base Salary'),\n         which shall be paid at a bi-weekly rate, at least equal to twelve times\n         the highest monthly base salary paid or payable to the Executive by the\n         Company and its affiliated companies in respect of the twelve-month\n         period immediately preceding the month in which the Effective Date\n         occurs. During the Employment Period, the Annual Base Salary shall be\n         reviewed at least annually and shall be increased at any time and from\n         time to time as shall be substantially consistent with increases in\n         base salary awarded in the ordinary course of business to other peer\n         executives of the Company and its affiliated companies. Any increase in\n         Annual Base Salary shall not serve to limit or reduce any other\n         obligation to the Executive under this Agreement. Annual Base Salary\n         shall not be reduced after any such increase and the term Annual Base\n         Salary as utilized in this Agreement shall refer \n\n\n                                       3\n\n\n         to Annual Base Salary as so increased. As used in this Agreement, the \n         term 'affiliated companies' includes any company controlled by, \n         controlling or under common control with the Company.\n\n                           (ii) Annual Bonus. In addition to Annual Base Salary,\n         the Executive shall be awarded, for each fiscal year during the\n         Employment Period, an annual bonus (the 'Annual Bonus') in cash at\n         least equal to the average annualized (for any fiscal year consisting\n         of less than twelve full months or with respect to which the Executive\n         has been employed by the Company for less than twelve full months)\n         bonus (the 'Average Annual Bonus') paid or payable to the Executive by\n         the Company and its affiliated companies in respect of the three fiscal\n         years immediately preceding the fiscal year in which the Effective Date\n         occurs, or such shorter period of the Executive's employment with the\n         Company. Each such Annual Bonus shall be paid no later than the end of\n         the third month of the fiscal year next following the fiscal year for\n         which the Annual Bonus is awarded, unless the Executive shall elect to\n         defer the receipt of such Annual Bonus pursuant to deferral plans of\n         the Company.\n\n                           (iii) Incentive, Savings and Retirement Plans. In\n         addition to Annual Base Salary and Annual Bonus payable as hereinabove\n         provided, the Executive shall be entitled to participate during the\n         Employment Period in all incentive, savings and retirement plans,\n         practices, policies and programs applicable to other peer executives of\n         the Company and its affiliated companies, but in no event shall such\n         plans, practices, policies and programs provide the Executive with\n         incentive, savings and retirement benefits opportunities, in each case,\n         less favorable, in the aggregate, than the most favorable of those\n         provided by the Company and its affiliated companies for the Executive\n         under such plans, practices, policies and programs as in effect at any\n         time during the one-year period immediately preceding the Effective\n         Date.\n\n                           (iv) Welfare Benefit Plans. During the Employment\n         Period, the Executive and\/or the Executive's family, as the case may\n         be, shall be eligible for participation in and shall receive all\n         benefits under welfare benefit plans, practices, policies and programs\n         provided by the Company and its affiliated companies (including,\n         without limitation, medical, prescription, dental, disability, salary\n         continuance, employee life, group life, accidental death and travel\n         accident insurance plans and programs) and applicable to other peer\n         executives of the Company and its affiliated companies, but in no event\n         shall such plans, practices, policies and programs provide benefits\n         which are less favorable, in the aggregate, than the most favorable of\n         such plans, practices, policies and programs in effect at any time\n         during the one-year period immediately preceding the Effective Date.\n\n                           (v) Expenses. During the Employment Period, the\n         Executive shall be entitled to receive prompt reimbursement for all\n         reasonable expenses incurred by the Executive in accordance with the\n         most favorable policies, practices and procedures of the Company and\n         its affiliated companies in effect at any time during the one-year\n         period immediately preceding the Effective Date or, if more favorable\n         to the Executive, as in effect at any time thereafter with respect to\n         other peer executives of the Company and its affiliated companies.\n\n\n                                       4\n\n\n\n                           (vi) Fringe Benefits. During the Employment Period,\n         the Executive shall be entitled to fringe benefits in accordance with\n         the most favorable plans, practices, programs and policies of the\n         Company and its affiliated companies in effect at any time during the\n         one-year period immediately preceding the Effective Date or, if more\n         favorable to the Executive, as in effect at any time thereafter with\n         respect to other peer executives of the Company and its affiliated\n         companies.\n\n                           (vii) Office and Support Staff. During the Employment\n         Period, the Executive shall be entitled to an office or offices of a\n         size and with furnishings and other appointments, and to exclusive\n         personal secretarial and other assistance, at least equal to the most\n         favorable of the foregoing provided to the Executive by the Company and\n         its affiliated companies at any time during the one-year period\n         immediately preceding the Effective Date or, if more favorable to the\n         Executive, as provided at any time thereafter with respect to other\n         peer executives of the Company and its affiliated companies.\n\n                           (viii) Vacation. During the Employment Period, the\n         Executive shall be entitled to paid vacation in accordance with the\n         most favorable plans, policies, programs and practices of the Company\n         and its affiliated companies as in effect at any time during the\n         one-year period immediately preceding the Effective Date or, if more\n         favorable to the Executive, as in effect at any time thereafter with\n         respect to other peer executives of the Company and its affiliated\n         companies.\n\n         5.       Termination of Employment.\n\n                  (a) Death or Disability. The Executive's employment shall\nterminate automatically upon the Executive's death during the Employment Period.\nIf the Company determines in good faith that the Disability of the Executive has\noccurred during the Employment Period (pursuant to the definition of\n'Disability' set forth below), it may give to the Executive written notice in\naccordance with Section 12(b) of this Agreement of its intention to terminate\nthe Executive's employment. In such event, the Executive's employment with the\nCompany shall terminate effective on the 30th day after receipt of such notice\nby the Executive (the 'Disability Effective Date'), provided that, within the 30\ndays after such receipt, the Executive shall not have returned to full-time\nperformance of the Executive's duties. For purposes of this Agreement,\n'Disability' means the absence of the Executive from the Executive's duties with\nthe Company on a full-time basis for 180 consecutive business days as a result\nof incapacity due to mental or physical illness which is determined to be total\nand permanent by a physician selected by the Company or its insurers and\nacceptable to the Executive or the Executive's legal representative (such\nagreement as to acceptability not to be withheld unreasonably).\n\n                  (b) Cause. The Company may terminate the Executive's\nemployment during the Employment Period for 'Cause'. For purposes of this\nAgreement, 'Cause' means (i) an act or acts of personal dishonesty taken by the\nExecutive and intended to result in substantial personal enrichment of the\nExecutive at the expense of the Company, (ii) repeated violations by the\nExecutive of the Executive's obligations under Section 4(a) of this Agreement\nwhich are demonstrably willful and deliberate on the Executive's part and which\nare not remedied in a reasonable period of time after receipt of written notice\nfrom the Company or (iii) the conviction of the Executive of a felony involving\nmoral turpitude.\n\n                                       5\n\n\n\n\n                  (c) Good Reason. The Executive's employment may be terminated\nduring the Employment Period by the Executive for Good Reason. For purposes of\nthis Agreement, 'Good Reason' means:\n\n                           (i) the assignment to the Executive of any duties\n         inconsistent in any respect with the Executive's position (including\n         status, offices, titles and reporting requirements), authority, duties\n         or responsibilities as contemplated by Section 4(a) of this Agreement,\n         or any other action by the Company which results in a diminution in\n         such position, authority, duties or responsibilities, excluding for\n         this purpose an isolated, insubstantial and inadvertent action not\n         taken in bad faith and which is remedied by the Company promptly after\n         receipt of notice thereof given by the Executive;\n\n                           (ii) any failure by the Company to comply with any of\n         the provisions of Section 4(b) of this Agreement, other than an\n         isolated, insubstantial and inadvertent failure not occurring in bad\n         faith and which is remedied by the Company promptly after receipt of\n         notice thereof given by the Executive;\n\n                           (iii) the Company's requiring the Executive to be \n         based at any office or location other than that described in Section \n         4(a)(i)(B) hereof;\n\n                           (iv) any purported termination by the Company of\n         the Executive's employment otherwise than as expressly permitted by \n         this Agreement; or\n\n                           (v) any failure by the Company to comply with \n         and satisfy Section 11(c) of this Agreement.\n\n         For purposes of this Section 5(c), any good faith determination of\n'Good Reason' made by the Executive shall be conclusive. Anything in this\nAgreement to the contrary notwithstanding, a termination by the Executive for\nany reason during the 30 day period immediately following the first anniversary\nof the Effective Date shall be deemed to be a termination for Good Reason for\nall purposes of this Agreement.\n\n                  (d) Notice of Termination. Any termination by the Company for\nCause or by the Executive for Good Reason shall be communicated by Notice of\nTermination to the other party hereto given in accordance with Section 12(b) of\nthis Agreement. For purposes of this Agreement, a 'Notice of Termination' means\na written notice which (i) indicates the specific termination provision in this\nAgreement relied upon, (ii) sets forth in reasonable detail the facts and\ncircumstances claimed to provide a basis for termination of the Executive's\nemployment under the provision so indicated and (iii) if the Date of Termination\n(as defined below) is other than the date of receipt of such notice, specifies\nthe termination date (which date shall be not more than 15 days after the giving\nof such notice). The failure by the Executive to set forth in the Notice of\nTermination any fact or circumstance which contributes to a showing of Good\nReason shall not waive any right of the Executive hereunder or preclude the\nExecutive from asserting such fact or circumstance in enforcing the Executive's\nrights hereunder.\n\n                  (e) Date of Termination. 'Date of Termination' means the date\nof receipt of the Notice of Termination or any later date specified therein, as\nthe case may be; provided, however, that (i) if the Executive's employment is\nterminated by the Company other than for Cause or Disability, the Date of\nTermination shall be the date on which the Company notifies the Executive of\nsuch termination and (ii) if the Executive's employment is terminated by reason\n\n\n                                       6\n\n\nof death or Disability, the Date of Termination shall be the date of death of\nthe Executive or the Disability Effective Date, as the case may be.\n\n         6.       Obligations of the Company Upon Termination.\n\n                  (a) Death. If the Executive's employment is terminated by\nreason of the Executive's death during the Employment Period, this Agreement\nshall terminate without further obligations to the Executive's legal\nrepresentatives under this Agreement, other than the sum of the following\nobligations: (i) the Executive's Annual Base Salary through the Date of\nTermination to the extent not theretofore paid, (ii) the product of (A) the\ngreater of (x) the Annual Bonus paid or payable (and annualized for any fiscal\nyear consisting of less than 12 full months or for which the Executive has been\nemployed for less than 12 full months) to the Executive for the most recently\ncompleted fiscal year during the Employment Period, if any, and (y) the Average\nAnnual Bonus (such greater amount hereafter referred to as the 'Highest Annual\nBonus') and (B) a fraction, the numerator of which is the number of days in the\ncurrent fiscal year through the Date of Termination, and the denominator of\nwhich is 365 and (iii) any accrued vacation pay not yet paid by the Company (the\namounts described in subparagraphs (i), (ii) and (iii) are hereafter referred to\nas 'Accrued Obligations'). All Accrued Obligations shall be paid to the\nExecutive's estate or beneficiary, as applicable, in a lump sum in cash within\n30 days of the Date of Termination. Anything in this Agreement to the contrary\nnotwithstanding, the Executive's family shall be entitled to receive benefits at\nleast equal to the most favorable benefits provided by the Company and any of\nits affiliated companies to surviving families of peer executives of the Company\nand such affiliated companies under such plans, programs, practices and policies\nrelating to family death benefits, if any, as in effect with respect to other\npeer executives and their families at any time during the one-year period\nimmediately preceding the Effective Date or, if more favorable to the Executive\nand\/or the Executive's family, as in effect on the date of the Executive's death\nwith respect to other peer executives of the Company and its affiliated\ncompanies and their families.\n\n                  (b) Disability. If the Executive's employment is terminated by\nreason of the Executive's Disability during the Employment Period, this\nAgreement shall terminate without further obligations to the Executive, other\nthan for Accrued Obligations. All Accrued Obligations shall be paid to the\nExecutive in a lump sum in cash within 30 days of the Date of Termination.\nAnything in this Agreement to the contrary notwithstanding, the Executive shall\nbe entitled after the Disability Effective Date to receive disability and other\nbenefits at least equal to the most favorable of those provided by the Company\nand its affiliated companies to disabled executives and\/or their families in\naccordance with such plans, programs, practices and policies relating to\ndisability, if any, as in effect with respect to other peer executives and their\nfamilies at any time during the one-year period immediately preceding the\nEffective Date or, if more favorable to the Executive and\/or the Executive's\nfamily, as in effect at any time thereafter with respect to other peer\nexecutives of the Company and its affiliated companies and their families.\n\n                  (c) Cause; Other Than for Good Reason. If the Executive's\nemployment shall be terminated for Cause or other than for Good Reason during\nthe Employment Period, this Agreement shall terminate without further\nobligations to the Executive other than the obligation to pay to the Executive\nAnnual Base Salary through the Date of Termination to the extent theretofore\nunpaid. In such case, such amounts shall be paid to the Executive in a lump sum\nin cash within 30 days of the Date of Termination.\n\n                  (d) Good Reason; Other Than for Cause or Disability. If,\nduring the \n\n\n                                        7\n\n\n\nEmployment Period, the Company shall terminate the Executive's employment other\nthan for Cause or Disability, or if the Executive shall terminate employment\nunder this Agreement for Good Reason:\n\n                           (i) the Company shall pay to the Executive in a lump\n         sum in cash within 30 days after the Date of Termination the aggregate\n         of the following amounts:\n\n                         A. all Accrued Obligations; and\n\n                         B. an amount equal to the product of (x) three and (y) \n                  the sum of (i) Annual Base Salary and (ii) the Highest Annual \n                  Bonus; and\n\n                         C. a lump sum retirement benefit equal to the\n                  difference between (a) the actuarial equivalent of the benefit\n                  under the Fleet Boston Corporation Pension Plan or similar\n                  BankBoston Plan in which the Executive is a participant (the\n                  'Pension Plan'), as supplemented by the Retirement Income\n                  Assurance Plan or any successor to such plan or similar\n                  BankBoston Plan in which the Executive is a participant (the\n                  'RIAP') and the Supplemental Executive Retirement Plan or any\n                  successor to such plan or similar BankBoston Plan in which the\n                  Executive is a participant (the 'SERP'; and together with the\n                  RIAP and the Pension Plan or similar BankBoston Plan in which\n                  the Executive is a participant , collectively referred to as\n                  the 'Retirement Plans'), which the Executive would receive if\n                  the Executive was fully vested in the Retirement Plans and the\n                  Executive's employment continued at the compensation level\n                  provided for in Sections 4(b)(i) and 4(b)(ii) for three years\n                  after the Date of Termination, and such three additional years\n                  shall be credited to the Executive for purposes of calculating\n                  the Executive's age, final average salary and years of service\n                  accrued under the Retirement Plans, provided, however, that\n                  any benefit to the Executive under any one or more of the\n                  Retirement Plans shall be included in the foregoing\n                  calculation only to the extent the Executive participated in\n                  such Retirement Plans immediately prior to the Effective Date,\n                  and (b) the actuarial equivalent of the Executive's actual\n                  benefit (paid or payable), if any, under the Retirement Plans;\n                  and\n\n                         D. the Executive shall be entitled to receive a\n                  lump-sum payment equal to (i) the employer matching\n                  contributions that the Company would have made on the\n                  Executive's behalf to the Fleet Boston Corporation Savings\n                  Plan or other similar or successor plan or similar BankBoston\n                  Plan in which the Executive is a participant (the 'Savings\n                  Plan') and the Executive Supplemental Plan or similar\n                  BankBoston Plan in which the Executive is a participant\n                  (assuming the maximum employee deferral election, and the\n                  maximum employer matching contribution rate, permitted under\n                  each of the Savings Plan and Executive Supplemental Plan) if\n                  the Executive's employment continued at the compensation level\n                  provided for in Section 4(b)(i) for three years, plus (ii) the\n                  amount, if any, of his account in the Savings Plan which is\n                  forfeitable on the Date of Termination; and\n\n                           (ii) for three years after the Executive's Date of\n         Termination, or such longer period as any plan, program, practice or\n         policy may provide, the Company shall continue benefits to the\n         Executive and\/or the Executive's family at least equal to those \n\n\n                                       8\n\n\n\n         which would have been provided in accordance with the applicable plans,\n         programs, practices and policies described in Section 4(b)(iv) of this\n         Agreement as if the Executive's employment had not been terminated or,\n         if more favorable to the Executive, as in effect at any time thereafter\n         with respect to other peer executives of the Company and its affiliated\n         companies and their families. For purposes of determining eligibility\n         of the Executive for retiree benefits pursuant to such plans,\n         practices, programs and policies, the Executive shall be considered to\n         have remained employed until three years after the Date of Termination\n         and to have retired on the last day of such period.\n\n                  7. Non-exclusivity of Rights. Nothing in this Agreement shall\nprevent or limit the Executive's continuing or future participation in any\nbenefit, bonus, incentive or other plans, programs, policies or practices,\nprovided by the Company or any of its affiliated companies and for which the\nExecutive may qualify, nor shall anything herein limit or otherwise affect such\nrights as the Executive may have under any other agreements with the Company or\nany of its affiliated companies. Amounts which are vested benefits or which the\nExecutive is otherwise entitled to receive under any plan, policy, practice or\nprogram of the Company or any of its affiliated companies at or subsequent to\nthe Date of Termination shall be payable in accordance with such plan, policy,\npractice or program except as explicitly modified by this Agreement.\n\n         8. Full Settlement. The Company's obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations\nhereunder shall not be affected by any set-off, counterclaim, recoupment,\ndefense or other claim, right or action which the Company may have against the\nExecutive or others. In no event shall the Executive be obligated to seek other\nemployment or take any other action by way of mitigation of the amounts payable\nto the Executive under any of the provisions of this Agreement. The Company\nagrees to pay, to the full extent permitted by law, all legal fees and expenses\nwhich the Executive may reasonably incur as a result of any contest (regardless\nof the outcome thereof) by the Company or others of the validity or\nenforceability of, or liability under, any provision of this Agreement or any\nguarantee of performance thereof (including as a result of any contest by the\nExecutive about the amount of any payment pursuant to Section 9 of this\nAgreement), plus in each case interest at the applicable Federal rate provided\nfor in Section 7872(f)(2) of the Internal Revenue Code of 1986, as amended (the\n'Code').\n\n         9.       Certain Additional Payments by the Company.\n\n                  (a) Anything in this Agreement to the contrary notwithstanding\nand except as set forth below, in the event it shall be determined that any\npayment or distribution by the Company to or for the benefit of the Executive\n(whether paid or payable or distributed or distributable pursuant to the terms\nof this Agreement or otherwise, but determined without regard to any additional\npayments required under this Section 9) (a 'Payment') would be subject to the\nexcise tax imposed by Section 4999 of the Code or any interest or penalties are\nincurred by the Executive with respect to such excise tax (such excise tax,\ntogether with any such interest and penalties, are hereinafter collectively\nreferred to as the 'Excise Tax'), then the Executive shall be entitled to\nreceive an additional payment (a 'Gross-Up Payment') in an amount such that\nafter payment by the Executive of all taxes (including any interest or penalties\nimposed with respect to such taxes), including, without limitation, any income\ntaxes (and any interest and penalties imposed with respect thereto) and Excise\nTax imposed upon the Gross-Up Payment, the Executive retains an amount of the\nGross-Up Payment equal to the Excise Tax imposed upon the Payments.\nNotwithstanding the foregoing provisions of this Section 9(a),\n\n\n                                       9\n\n\nif it shall be determined that the Executive is entitled to a Gross-Up Payment,\nbut that the Executive, after taking into account the Payments and the Gross-Up\nPayment, would not receive a net after-tax benefit of at least $50,000 (taking\ninto account both income taxes and any Excise Tax) as compared to the net\nafter-tax proceeds to the Executive resulting from an elimination of the\nGross-Up Payment and a reduction of the Payments, in the aggregate, to an amount\n(the 'Reduced Amount') such that the receipt of Payments would not give rise to\nany Excise Tax, then no Gross-Up Payment shall be made to the Executive and the\nPayments, in the aggregate, shall be reduced to the Reduced Amount.\n\n                  (b) Subject to the provisions of Section 9(c), all\ndeterminations required to be made under this Section 9, including whether and\nwhen a Gross-Up Payment is required and the amount of such Gross-Up Payment and\nthe assumptions to be utilized in arriving at such determination, shall be made\nby KPMG Peat Marwick unless such firm shall be the accounting firm of the\nCompany or any affiliate of the Company at the Date of Termination, in which\ncase such determinations shall be made by an accounting firm of national\nstanding agreed to by the Company and the Executive (which may be KPMG Peat\nMarwick if agreed to by the Executive), or, if the Company does not so agree\nwithin 10 days of the Date of Termination, such an accounting firm shall be\nselected by the Executive (the 'Accounting Firm') which shall provide detailed\nsupporting calculations both to the Company and the Executive within 15 business\ndays of the date such firm is selected or such earlier time as is reasonably\nrequested by the Company. All fees and expenses to the Accounting Firm shall be\nborne solely by the Company. Any Gross-Up Payment, as determined pursuant to\nthis Section 9, shall be paid by the Company to the Executive within five days\nof the receipt of the Accounting Firm's determination. Any determination by the\nAccounting Firm shall be binding upon the Company and the Executive. As a result\nof the uncertainty in the application of Section 4999 of the Code at the time of\nthe initial determination by the Accounting Firm hereunder, it is possible that\nGross-Up Payments which will not have been made by the Company should have been\nmade ('Underpayment'), consistent with the calculations required to be made\nhereunder. In the event that the Company exhausts its remedies pursuant to\nSection 9(c) and the Executive thereafter is required to make a payment of any\nExcise Tax, the Accounting Firm shall determine the amount of the Underpayment\nthat has occurred and any such Underpayment shall be promptly paid by the\nCompany to or for the benefit of the Executive.\n\n                  (c) The Executive shall notify the Company in writing of any\nclaim by an Internal Revenue Service that, if successful, would require the\npayment by the Company of the Gross-Up Payment. Such notification shall be given\nas soon as practicable but no later than ten business days after the Executive\nreceives written notification of such claim and shall apprise the Company of the\nnature of such claim and the date on which such claim is requested to be paid.\nThe Executive shall not pay such claim prior to the expiration of the 30-day\nperiod following the date on which it gives such notice to the Company (or such\nshorter period ending on the date that any payment of taxes with respect to such\nclaim is due). If the Company notifies the Executive in writing prior to the\nexpiration of such period that it desires to contest such claim, the Executive\nshall:\n\n                         (i) give the Company any information reasonably\n                  requested by the Company relating to such claim;\n\n                         (ii) take such action in connection with contesting\n                  such claim as the Company shall reasonably request in writing\n                  from time to time, provided, however, that the Company's\n                  selection of one or more attorneys to provide legal\n                  representation with \n\n\n                                       10\n\n\n                  respect to such claim shall be subject to the Executive's \n                  prior written approval;\n\n                         (iii) cooperate with the Company in good faith in order\n                  to contest such claim effectively; and\n\n                         (iv) permit the Company to participate in any\n                  proceedings relating to such claim;\n\nprovided, however, that the Company shall bear and pay directly all costs and\nexpenses (including additional interest and penalties) incurred in connection\nwith such contest and shall indemnify and hold the Executive harmless, on an\nafter-tax basis, for any Excise Tax or income tax (including interest and\npenalties with respect thereto) imposed as a result of such representation and\npayment of costs and expenses. Without limitation on the foregoing provisions of\nthis Section 9(c), the Company shall control all proceedings taken in connection\nwith such contest and, at its sole option, may pursue or forgo any and all\nadministrative appeals, proceedings, hearings and conferences with the taxing\nauthority in respect of such claim and may, at its sole option, either direct\nthe Executive to pay the tax claimed and sue for a refund or contest the claim\nin any permissible manner, and the Executive agrees to prosecute such contest to\na determination before any administrative tribunal, in a court of initial\njurisdiction and in one or more appellate courts, as the Company shall\ndetermine; provided, however, that if the Company directs the Executive to pay\nsuch claim and sue for a refund, the Company shall advance the amount of such\npayment to the Executive, on an interest-free basis and shall indemnify and hold\nthe Executive harmless, on an after-tax basis, from any Excise Tax or income tax\n(including interest or penalties with respect thereto) imposed with respect to\nsuch advance or with respect to any imputed income with respect to such advance;\nand provided, further, that any extension of the statute of limitations relating\nto payment of taxes for the taxable year of the Executive with respect to which\nsuch contested amount is claimed to be due is limited solely to such contested\namount. Furthermore, the Company's control of the contest shall be limited to\nissues with respect to which a Gross-Up Payment would be payable hereunder and\nthe Executive shall be entitled to settle or contest, as the case may be, any\nother issue raised by the Internal Revenue Service or any other taxing\nauthority.\n\n                  (d) If, after the receipt by the Executive of an amount \nadvanced by the Company pursuant to Section 9(c), the Executive becomes entitled\nto receive any refund with respect to such claim, the Executive shall (subject\nto the Company's complying with the requirements of Section 9(c)) promptly pay\nto the Company the amount of such refund (together with any interest paid or\ncredited thereon after taxes applicable thereto). If, after the receipt by the\nExecutive of an amount advanced by the Company pursuant to Section 9(c), a\ndetermination is made that the Executive shall not be entitled to any refund\nwith respect to such claim and the Company does not notify the Executive in\nwriting of its intent to contest such denial of refund prior to the expiration\nof 30 days after such determination, then such advance shall be forgiven and\nshall not be required to be repaid and the amount of such advance shall offset,\nto the extent thereof, the amount of Gross-Up Payment required to be paid.\n\n         10. Coordination with the Employment Agreement, as may be amended from \n             time to time, between the Executive and Fleet Financial Group, Inc.\n             dated March 14, 1999 ('Employment Agreement).\n\n         From and after a Change in Control and during the term of this\nAgreement, in the event of any termination of employment that entitles the\nExecutive to benefits under both this \n\n\n                                       11\n\n\nAgreement and the Employment Agreement, the Executive shall be entitled to\nbenefits hereunder only to the extent that the aggregate amount of benefits to\nwhich he is entitled hereunder exceeds the aggregate amount of benefits to which\nhe is entitled under the Employment Agreement. Notwithstanding any provision to\nthe contrary contained herein, the terms and conditions of the Executive's\nemployment with the Company during the term of the Employment Agreement shall be\ngoverned by the Employment Agreement.\n\n         11. Confidential Information. The Executive shall hold in a fiduciary\ncapacity for the benefit of the Company all secret or confidential information,\nknowledge or data relating to the Company or any of its affiliated companies,\nand their respective businesses, which shall have been obtained by the Executive\nduring the Executive's employment by the Company or any of its affiliated\ncompanies and which shall not be or become public knowledge (other than by acts\nby the Executive or representatives of the Executive in violation of this\nAgreement). After termination of the Executive' s employment with the Company,\nthe Executive shall not, without the prior written consent of the Company,\ncommunicate or divulge any such information, knowledge or data to anyone other\nthan the Company and those designated by it. In no event shall an asserted\nviolation of the provisions of this Section 10 constitute a basis for deferring\nor withholding any amounts otherwise payable to the Executive under this\nAgreement.\n\n         12.      Successors.\n\n                  (a) This Agreement is personal to the Executive and without\nthe prior written consent of the Company shall not be assignable by the\nExecutive otherwise than by will or the laws of descent and distribution. This\nAgreement shall inure to the benefit of and be enforceable by the Executive's\nlegal representatives.\n\n                  (b) This Agreement shall inure to the benefit of and be\nbinding upon the Company and its successors and assigns.\n\n                  (c) The Company will require any successor (whether direct or\nindirect, by purchase, merger, consolidation or otherwise) to all or\nsubstantially all of the business and\/or assets of the Company to assume\nexpressly and agree to perform this Agreement in the same manner and to the same\nextent that the Company would be required to perform it if no such succession\nhad taken place. As used in this Agreement, 'Company' shall mean the Company as\nhereinbefore defined and any successor to its business and\/or assets as\naforesaid which assumes and agrees to perform this Agreement by operation of\nlaw, or otherwise.\n\n         13.      Miscellaneous.\n\n                  (a) This Agreement shall be governed by and construed in\naccordance with the laws of the State of Rhode Island, without reference to\nprinciples of conflict of laws. The captions of this Agreement are not part of\nthe provisions hereof and shall have no force or effect. This Agreement may not\nbe amended or modified otherwise than by a written agreement executed by the\nparties hereto or their respective successors and legal representatives.\n\n                  (b) All notices and other communications hereunder shall be in\nwriting and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as\nfollows:\n\n                  If to the Executive:\n\n\n                                       12\n\n\n                           [                                 ]\n                           Fleet Boston Corporation\n                           100 Federal Street\n                           Boston, MA  02110\n\n                  If to the Company:\n\n                           Fleet Boston Corporation\n                           100 Federal Street\n                           Boston, MA  02110\n                           Attention:  General Counsel\n\nor such other address as either party shall have furnished to the other in\nwriting in accordance herewith. Notice and communications shall be effective\nwhen actually received by the addressee.\n\n                  (c) The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n\n                  (d) The Company may withhold from any amounts payable under\nthis Agreement such Federal, state or local taxes as shall be required to be\nwithheld pursuant to any applicable law or regulation.\n\n                  (e) The Executive's failure to insist upon strict compliance\nwith any provision hereof shall not be deemed to be a waiver of such provision\nor any other provision thereof.\n\n                  (f) This Agreement contains the entire understanding of the\nCompany and the Executive with respect to the subject matter hereof and by\nentering into this Agreement the Executive waives all rights he may have under\nthe Company's separation policy.\n\n         IN WITNESS WHEREOF, the Executive has executed this Agreement and the\nCompany has caused this Agreement to be executed by its duly authorized officer\nas of the day and year first above-written.\n\n                                      -----------------------------\n                                         [                      ]\n\n                                      FLEET BOSTON CORPORATION\n\n\n                                      By___________________________\n                                           William C. Mutterperl\n                                           Executive Vice President\n\n\n                                       13\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7545],"corporate_contracts_industries":[9415],"corporate_contracts_types":[9539,9544],"class_list":["post-38613","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fleetboston-financial-corp","corporate_contracts_industries-financial__banks","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38613","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38613"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38613"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38613"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38613"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}