{"id":40380,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/retention-and-deferred-compensation-agreement-fleet-boston2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"retention-and-deferred-compensation-agreement-fleet-boston2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/retention-and-deferred-compensation-agreement-fleet-boston2.html","title":{"rendered":"Retention and Deferred Compensation Agreement &#8211; Fleet Boston Corp. and Peter J. Manning"},"content":{"rendered":"<pre>\n                                                                EXECUTION COPY\n\n                  RETENTION AND DEFERRED COMPENSATION AGREEMENT\n\n                  THIS RETENTION AND DEFERRED COMPENSATION AGREEMENT\n('Agreement') dated December 31, 1999 and effective as of October 1, 1999 (the\n'Effective Date') by and between Fleet Boston Corporation, a corporation\norganized under the laws of Rhode Island (the 'Company') and Peter J. Manning\n(the 'Executive').\n\n                                   WITNESSETH:\n\n        WHEREAS, the Company has determined that appropriate steps should be\ntaken to encourage the Executive to remain employed by the Company by providing\nfor certain benefits;\n\n        NOW, THEREFORE, the parties hereto, intending to be legally bound\nhereby, agree to the following:\n\n        1. Definitions. The following terms shall have the meanings ascribed to\nthem below. \n\n           (a)   'Cause,' for termination of the Executive's employment by the\nCompany, shall mean (i) the willful and continued failure by the Executive to\nsubstantially perform the Executive's duties with the Company (other than any\nsuch failure resulting from the Executive's incapacity due to physical or mental\nillness or any such actual or anticipated failure after the issuance of a notice\nof termination for Good Reason by the Executive) after a written demand for\nsubstantial performance is delivered to the Executive by the Board, which demand\nspecifically identifies the manner in which the Board believes that the\nExecutive has not substantially performed the Executive's duties, or (ii) the\nwillful engaging by the Executive in gross misconduct which is demonstrably and\nmaterially injurious to the Company or any of its subsidiaries, monetarily or\notherwise. For purposes of clauses (i) and (ii) of this definition, no act, or\nfailure to act, on the Executive's part shall be deemed 'willful' unless done,\nor omitted to be done, by the Executive not in good faith and without reasonable\nbelief that the Executive's act, or failure to act, was in the best interest of\nthe Company. A termination of the Executive's employment for Cause shall not be\neffective for purposes of this Agreement unless there is delivered to the\nExecutive a copy of a resolution duly adopted by the affirmative vote of not\nless than three \n\n\n\n\n\nquarters (3\/4) of the entire membership of the Company's Board of Directors\n('Board') at a meeting of the Board that was called and held for the purpose of\nconsidering such termination (after reasonable notice to the Executive and an\nopportunity for the Executive, together with the Executive's counsel, to be\nheard before the Board) finding that, in the good faith opinion of the Board,\nthe Executive was guilty of conduct set forth in clause (i) or (ii) of the\ndefinition of Cause herein, and specifying the particulars thereof in detail.\n\n           (b)   'Change in Control' shall mean\n\n                (i) The acquisition, other than from the Company, by any\n     individual, entity or group (within the meaning of Section 13(d)(3) or\n     14(d)(2) of the Securities Exchange Act of 1934, as amended (the 'Exchange\n     Act')) of beneficial ownership (within the meaning of Rule 13d-3\n     promulgated under the Exchange Act) of 25% or more of the then outstanding\n     shares of common stock of the Company (the 'Outstanding Company Common\n     Stock'); provided, however, that any acquisition by the Company or its\n     subsidiaries, or any employee benefit plan (or related trust) of the\n     Company or its subsidiaries, of 25% or more of the Outstanding Company\n     Common Stock shall not constitute a Change of Control; and provided,\n     further, that any acquisition by a corporation with respect to which,\n     following such acquisition, more than 50% of the then outstanding shares of\n     common stock of such corporation is then beneficially owned, directly or\n     indirectly, by all or substantially all of the individuals and entities who\n     were the beneficial owners of the Outstanding Company Common Stock\n     immediately prior to such acquisition in substantially the same proportion\n     as their ownership immediately prior to such acquisition of the Outstanding\n     Company Common Stock, shall not constitute a Change of Control; or\n\n                (ii) Individuals who, as of the date of this Agreement,\n     constitute the Board (the 'Incumbent Board') cease for any reason to\n     constitute at least a majority of the Board, provided that any individual\n     becoming a director subsequent to the date of this Agreement whose\n     election, or nomination for election by the Company's stockholders, was\n     approved by a vote of at least a majority of the directors then comprising\n     the Incumbent Board shall be considered as though such individual were a\n     member of the Incumbent Board, but excluding, for this purpose, any such\n     individual whose initial assumption of office is in connection with an\n     actual or threatened election contest relating to the election of the\n     Directors of the Company (as such terms are used in Rule 14a-11 of\n     Regulation 14A promulgated under the Exchange Act); or\n\n                                       2\n\n\n\n\n                (iii) Consummation of a reorganization, merger, consolidation,\n     sale or other disposition of all or substantially all of the assets of the\n     Company (a 'Business Combination'), in each case, with respect to which all\n     or substantially all of the individuals and entities who were the\n     beneficial owners of the Outstanding Company Common Stock immediately prior\n     to such Business Combination do not, following such Business Combination,\n     beneficially own, directly or indirectly, more than 50% of the then\n     outstanding shares of common stock of the corporation resulting from such a\n     Business Combination (including, without limitation, a corporation which as\n     a result of such transaction owns the Company or all or substantially all\n     of the Company's assets either directly or through one or more\n     subsidiaries).\n\n                (iv) Approval by the stockholders of the Company of a complete\n     liquidation or dissolution of the Company.\n\n         Anything in this Agreement to the contrary notwithstanding, if an \nevent 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           (c) 'Date of Termination,' with respect to termination of employment\nby reason of death, shall mean the date of death, and with respect to any other\ntermination of employment, shall mean the date specified in the Notice of\nTermination (which, in the case of a termination by the Company, shall not be\nless than thirty (30) days, except in the case of a termination for Cause) and,\nin the case of a termination by the Executive, shall not be less than fifteen\n(15) days nor more than sixty (60) days, respectively, from the date such Notice\nof Termination is given). 'Notice of Termination' shall mean a notice that shall\nindicate the specific termination provision in this Agreement relied upon, shall\n(if applicable) set forth in reasonable detail the facts and circumstances\nclaimed to provide a basis for termination of the Executive's employment under\nthe provision so indicated, and shall specify the date on which the termination\nof employment shall be effective.\n\n'Good Reason,' for termination by the Executive of the Executive's employment,\nshall mean any reason that is approved by Charles K Gifford or, in the event\nthat Mr. Gifford ceases to be an executive officer of the Company, any reason\ndeemed sufficient by the Executive.\n\n\n                                       3\n\n\n        2. Retention Payment.\n\n           (a) The Executive shall be entitled to receive on the Distribution\nDate (as defined in Section 3) an amount equal to $2,705,000 (the 'Retention\nPayment') if any of the following events shall occur:\n\n                (i) the Executive's employment with the Company continues\n     through the second anniversary of the Effective Date of this Agreement (the\n     'Retention Date'), or\n\n                (ii) the Executive's employment with the Company is terminated\n     prior to the Retention Date by the Company without Cause, or\n\n                (iii) the Executive's employment with the Company is terminated\n     prior to the Retention Date by the Executive for Good Reason, or\n\n                (iv) the Executive's employment with the Company is terminated\n     prior to the Retention Date by reason of death or disability; or\n\n                (v) a Change in Control occurs prior to the Retention Date.\n\nIf the Executive's employment is terminated prior to the Retention Date (i) by\nthe Company for Cause or (ii) by the Executive other than for Good Reason, the\nExecutive shall not be entitled to any portion of the Retention Payment.\n\n           (b) The Retention Payment shall accrue interest at an annual rate\nequal to the 'prime rate,' as in effect from time to time, compounded daily,\nduring the period (the 'Interest Term') commencing on the Effective Date of this\nAgreement and ending on the Distribution Date, as defined in Section 3 (subject\nto the limitation that the average interest rate used in each full or partial\ncalendar year during the Interest Term shall in no event exceed 10%). If the\nExecutive's employment is terminated prior to the Retention Date (i) by the\nCompany for Cause or (ii) by the Executive other than for Good Reason, the\nExecutive shall not be entitled to any portion of such accrued interest.\n\n         3. Distribution of Retention Payment.\n\n           (a) No portion of the Retention Payment may be distributed\n\n\n                                       4\n\n\nto the Executive during the period that the Executive is employed by the\nCompany. If the Executive becomes entitled to the Retention Payment pursuant to\nSection 2(a), the Executive may elect to have the Retention Payment distributed\nin any of the following forms: (i) in a cash lump sum no later than the fifth\nbusiness day following the Date of Termination; or (ii) in periodic installments\nfor a period of 5, 10 or 15 years following the Date of Termination; provided,\nhowever, if the Executive is less than 55 years old when the Executive becomes\nentitled to distribution of the Retention Payments, only the lump sum payment\noption described in (i) above shall be available to the Executive. The term\n'Distribution Date,' with respect to a lump-sum payment or one in a series of\nperiodic payments, shall mean the date on which such payment is made.\n\n           (b) The Executive may designate a beneficiary who will be entitled to\nany portion of the Retention Payment to which the Executive is entitled in the\nevent of his death. The beneficiary may be designated or changed by the\nExecutive (without the consent of any prior beneficiary) on a form provided by\nthe Company and delivered to the Company before his death. If no such\nbeneficiary shall have been designated, or if no designated beneficiary shall\nsurvive the Executive, the Retention Payment, if not previously paid, shall be\npaid to the Executive's estate.\n\n           (c) On the Effective Date of this Agreement, the Executive shall make\nan initial written election as to the form and time of the distribution of the\nRetention Payment, in the space provided on the signature page of this\nAgreement. At any time after the initial election, the Executive may change his\nelection by delivering to the Company written notice of such change; provided,\nhowever, that no such subsequent election shall be effective unless such notice\nis delivered to the Company at least 12 months prior to the Executive's (i)\nreasonably anticipated retirement from the Company or (ii) termination of\nemployment.\n\n        4. Additional Payment. It is the intention of the parties hereto that no\npart of the Retention Payment will be treated as an 'excess parachute payment'\nfor purposes of the excise tax (the 'Excise Tax') imposed under section 4999 of\nthe Internal Revenue Code of 1986, as amended (the 'Code'). If, however, an\nExcise Tax is imposed upon the Retention Payment or any other payment or deemed\npayment made to the Executive, then the Company shall make an additional payment\nto the Executive in accordance with the terms and conditions set forth on\nAppendix I hereto.\n\n\n                                       5\n\n\n        5. Legal Fees. The Company also shall pay to the Executive all legal\nfees and expenses that may be incurred in good faith by the Executive in seeking\nto obtain or enforce any benefit or right provided by this Agreement. Such\npayments shall be made within five (5) business days after delivery of the\nExecutive's written requests for payment accompanied with such evidence of fees\nand expenses incurred as the Company reasonably may require.\n\n        6. No Effect on Other Contractual Rights. The provisions of this\nAgreement, and any payment provided for hereunder, shall not reduce any amounts\notherwise payable, or in any way diminish the Executive's existing rights (or\nrights which would accrue solely as a result of the passage of time) under any\nemployee benefit plan or employment agreement or other contract, plan or\narrangement nor shall any amounts payable hereunder be considered in determining\nthe amount of benefits payable to the Executive under any such plan, agreement\nor contract.\n\n        7. Nonalienation of Benefits. The right of the Executive or any other\nperson to the payment of deferred compensation or other benefits under this\nAgreement shall not be subject in any manner to anticipation, alienation, sale,\ntransfer, assignment, pledge, encumbrance, attachment or garnishment by\ncreditors of the Executive or the Executive's beneficiary or estate.\n\n        8. Successors; Binding Agreement.\n\n           (a) The Company shall 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, by agreement in\nform and substance reasonably satisfactory to the Executive, expressly to assume\nand agree to perform this Agreement in the same manner and to the same extent\nthat the Company would be required to perform it if no such succession had taken\nplace. As used in this Agreement, 'Company' shall mean the Company as\nhereinbefore defined and any successor to its business and\/or assets as\naforesaid that becomes bound by the terms and provisions of this Agreement, by\noperation of law or otherwise.\n\n           (b) This Agreement and all rights of the Executive hereunder shall\ninure to the benefit of and be enforceable by the Executive's personal or legal\nrepresentatives, executors, administrators, successors, heirs, distributees,\ndevisees, legatees and beneficiaries. If the Executive should die while any\namounts would still be payable to him hereunder if he had continued to live, all\nsuch amounts, unless otherwise provided herein, shall be paid in accordance with\nthe terms of this Agreement to the Executive's devisee, legatee, or other\ndesignee or, if there be no such \n\n\n                                       6\n\n\ndesignee, to the Executive's estate.\n\n        9. Notice. For the purposes of this Agreement, notices, demands and all\nother communications provided for in this Agreement shall be in writing and\nshall be deemed to have been duly given when delivered or (unless otherwise\nspecified) mailed by United States certified or registered mail, return receipt\nrequested, postage prepaid, addressed, if to the Executive, to the address\nprinted on the signature page of this Agreement, and if to the Company, to its\nheadquarters, attention: General Counsel, or to such other address as either\nparty may have furnished to the other in writing in accordance herewith, except\nthat notices of change of address shall be effective only upon receipt.\n\n        10. Miscellaneous. No provisions of this Agreement may be modified,\nwaived or discharged unless such waiver, modification or discharge is agreed to\nin writing by the Executive and the Company. No waiver by either party hereto at\nany time of any breach by the other party hereto of, or compliance with, any\ncondition or provision of this Agreement to be performed by such other party\nshall be deemed a waiver of similar or dissimilar provisions or conditions at\nthe same or at any prior or subsequent time. No agreements or representations,\noral or otherwise, express or implied, with respect to the subject matter hereof\nhave been made by either party that are not set forth expressly in this\nAgreement. The validity, interpretation, construction and performance of this\nAgreement shall be governed by the laws of the Commonwealth of Massachusetts\nwithout regard to its conflicts of law principles.\n\n        11. Validity. The invalidity or unenforceability of any provision or\nprovisions of this Agreement shall not affect the validity or enforceability of\nany other provision of this Agreement, which shall remain in full force and\neffect.\n\n        12. Counterparts. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which\ntogether will constitute one and the same instrument.\n\n        13. Entire Agreement. This Agreement sets forth the entire agreement of\nthe parties hereto in respect of the subject matter contained herein, and shall\nbe deemed to supersede the agreement entered into between the Executive and\nBankBoston Corporation, dated June 25, 1998, as amended (the 'Severance\nAgreement'), and any promises, covenants, communications, representations or\nwarranties, whether oral or written, by any officer, employee or representative\nof any party hereto with respect to the subject matter contained herein.\n\n\n                                       7\n\n\n\n        IN WITNESS WHEREOF, the parties have executed this Agreement as of the\ndate first above written.\n\n\n                                FLEET BOSTON CORPORATION\n\n\n                                \/s\/ M. ANNE SZOSTAK\n                                ---------------------------------\n                                By: M. Anne Szostak\n                                Title:  Executive Vice Presidnet\n\n\n                                            \/s\/ PETER J. MANNING\n                                ---------------------------------------\n                                 Name:       Peter J. Manning\n                                 Address:    84 Partridge Lane\n                                             Concord, MA  01742\n\nI hereby elect to receive the Retention Payment as follows:\n\n  [ ]     In one lump-sum payment, within five days following the Date of\n          Termination.\n\n  [X]     In a series of quarterly payments, commencing on the Date of\n          Termination and ending on the 15th anniversary thereof (select 5th,\n          10th or 15th anniversary).\n\n                                                    \/s\/ PETER J. MANNING\n                                            ----------------------------------\n                                                       Peter J. Manning\n\n\n                                       8\n\n\n\n                                                                      APPENDIX I\n\n               Procedures for Determination of Additional Payment\n\n        (a) Subject to the limitations set forth in paragraph (e) of this\nAppendix, if the Executive becomes subject to the excise tax (the 'Excise Tax')\nimposed under section 4999 of the Internal Revenue Code of 1986, as amended(the\n'Code'), upon 'excess parachute payments' (as defined in section 280G of the\nCode), the Company shall promptly pay the Executive the amount or amounts (a\n'Gross-Up Payment') that are necessary to place the Executive in the same\nafter-tax (taking into account federal, state, local income, excise,\nunemployment and other taxes) financial position that he would have been in if\nhe had not incurred any tax liability under section 4999 of the Code, but only\nto the extent that the Excise Tax results in a payment to the Internal Revenue\nService.\n\n        (b) If the Company has determined that no Gross-Up Payment is necessary,\nthen in no case will the Executive file a tax return which takes a position that\nany Excise Tax is payable, unless he receives a written opinion from his tax\nadvisor that it is more likely than not that such Excise Tax is due and payable.\nUpon receipt of such written opinion, the Executive shall communicate such\nwritten opinion to the Company not less than 30 days prior to filing the tax\nreturn to which the opinion refers. Prior to the due date for the filing of such\ntax return, the Company shall pay to the Executive the Gross-Up Payment\ndescribed above.\n\n        (c) Each party will notify the other in writing of any claim by the\nInternal Revenue Service that, if successful, would require the payment by the\nCompany of the Gross-Up Payment. Such notification shall be given as soon as\npracticable but no later than ten business days after such party is informed in\nwriting of such a claim and such party shall apprise the other party of the\nnature of such claim and the date on which such claim is requested to be paid.\n\n        (d) The Company shall bear and pay directly all costs and expenses\n(including legal fees and additional interest and penalties) incurred in\nconnection with any such claim or proceeding, to the extent related to the\nExcise Tax, and shall indemnify and hold the Executive harmless, on an after-tax\nbasis, as provided in paragraph (a) of this Appendix, for any Excise Tax or\nincome tax (including interest and penalties with respect thereto) imposed as a\nresult of such representation and payment of costs and expenses.\n\n        (e) In the event that all 'parachute payments,' as defined in section\n280G of the Code, payable to the Executive (after deduction of the net amount of\nfederal, state and local income and employment taxes and the amount of Excise\nTax to which the Executive would be subject in respect of such 'parachute\npayments') does not equal or exceed 110% of the largest amount of 'parachute\npayments' that would result in no portion thereof being subject to the Excise\nTax (after deduction of the net amount of federal, state and local income and\nemployment taxes on such reduced payments), then paragraph (a) of this Appendix\nshall not apply and the Retention Payment shall be reduced as necessary to\nensure that no portion of the \n\n\n                                       9\n\n\n\n'parachute payments' is subject to the Excise Tax.\n\nIf it is finally determined that the Excise Tax is less than the amount taken\ninto account in calculating the Gross-Up Payment under paragraph (a) hereof,\nand\/or the Retention Payment is to be reduced or further reduced pursuant to\nparagraph (e) hereof, then the Executive shall promptly repay to the Company (x)\nthe portion of the Gross-Up Payment attributable to the excess Excise Tax and\/or\n(y) the excess Retention Payment, as applicable, plus interest on the amount of\nsuch repayment at 120% of the rate provided in section 1274(b)(2)(B) of the\nCode, but such repayment plus interest thereon shall be required only to the\nextent that such repayment results (1) (in the case of any repayment in the\nGross-Up Payment) in a reduction in the Excise Tax and (2) (in the case of any\nrepayment in the Gross-Up Payment or the Retention Payment) a dollar-for-dollar\nreduction in the Executive's taxable income and wages for purposes of federal,\nstate and local income and employment taxes. If it is finally determined that\nthe Excise Tax exceeds the amount taken into account in calculating the Gross-Up\nPayment under paragraph (a) hereof and\/or the Retention Payment should not have\nbeen reduced to the extent that it was, the Company shall promptly make an\nadditional Gross-Up Payment to the Executive and\/or pay the Executive any\nportion of the Retention Payment incorrectly reduced, as appropriate (plus any\ninterest, penalties or additions payable by the Executive with respect to such\nexcess and such portion), plus interest on the amount of such repayment at 120%\nof the rate provided in section 1274(b)(2)(B) of the Code.\n\n\n                                       10\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-40380","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\/40380","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=40380"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40380"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40380"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40380"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}