EXHIBIT 10(m)
AGREEMENT
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THIS AGREEMENT dated as of August 5, 1994, is made by and between BankBoston
Corporation, a Massachusetts corporation (the "Company"), and ___________ (the
"Executive").
WHEREAS the Company considers it essential to the best interests of its
stockholders to foster the continuous employment of key management personnel;
and
WHEREAS the Board of Directors of the Company (the "Board") recognizes that,
as is the case with many publicly held corporations, the possibility of a Change
in Control (as defined in the last Section hereof) exists and that such
possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of management personnel
to the detriment of the Company and its stockholders; and
WHEREAS the Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including the Executive, to their
assigned duties with the Company and/or the Bank, as the case may be, without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change in Control;
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and for other valuable consideration, the Company and the
Executive hereby agree as follows:
1. Defined Terms. The definitions of capitalized terms used in this
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Agreement are provided in the last Section hereof.
2. Term of Agreement. This Agreement shall commence on the date hereof and
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shall continue in effect through August 31, 1997, provided that commencing on
September 1, 1996 and each September 1 thereafter, the term of this Agreement
shall automatically be extended for one additional year unless, not later than
May 31 of the preceding year, the Company or the Executive shall have given
notice not to extend this Agreement or a Change in Control shall have occurred
prior to such September 1. If a Change in Control shall have occurred during
the term of this Agreement, however, this Agreement shall continue in effect for
a period of not less than three (3) years beyond the last day of the month in
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which such Change in Control occurred. Notwithstanding the foregoing provisions
of this Section 2, this Agreement shall terminate, unless earlier terminated in
accordance with this Agreement, (i) one (1) year after the Executive is notified
in accordance with Section 10 hereof that the Compensation Committee, upon
recommendation of the Company's chief executive officer, has voted to terminate
this Agreement or (ii) if earlier, immediately after the Executive is notified
in accordance with Section 10 hereof that the Compensation Committee has
determined that the Executive's level of responsibility (other than reporting
responsibility) has substantially changed from the Executive's current level of
responsibility, in either case only if the notification occurs prior to a
Potential Change in Control that results in a Change in Control. By way of
illustration, if there were a change in the nature of the Executive's
responsibilities (e.g., from technology to human resources) but the only change
in the level of the Executive's responsibilities were a change in reporting
responsibilities, these changes alone would not provide grounds for the
Compensation Committee determination referred to in clause (ii) above.
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3. Company's Covenants Summarized. In order to induce the Executive to
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remain in the employ of the Company or the Bank and in consideration of the
Executive's covenants set forth in Section 4 hereof, the Company agrees, under
the conditions described herein, to pay the Executive the Severance Payments
described in Section 6.1 hereof and the other payments and benefits described
herein in the event the Executive's employment with the Company or the Bank is
terminated following a Change in Control and during the term of this Agreement.
No amount or benefit shall be payable under this Agreement unless there shall
have been (or, under the terms hereof, there shall be deemed to have been) a
termination of the Executive's employment with the Company or the Bank following
a Change in Control. This Agreement shall not be construed as creating an
express or implied contract of employment, and except as otherwise agreed in
writing between the Executive and the Company, the Executive shall not have any
right to be retained in the employ of the Company or the Bank.
4. Executive's Covenants. The Executive agrees that, subject to the terms
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and conditions of this Agreement, in the event of a Potential Change in Control
during the term of this Agreement, the Executive will
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remain in the employ of the Company or the Bank until the earliest of (i) a date
which is six (6) months from the date of such Potential Change of Control, (ii)
the date of a Change in Control, (iii) the date of termination by the Executive
of the Executive's employment for Good Reason (determined by treating the
Potential Change in Control as a Change in Control in applying the definition of
Good Reason), by reason of death or Retirement, or (iv) the termination by the
Company or the Bank of the Executive's employment for any reason.
5. Compensation Other Than Severance Payments.
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5.1 Following a Change in Control and during the term of this Agreement,
during any period that the Executive fails to perform the Executive's full-time
duties with the Company as a result of incapacity due to physical or mental
illness, the Company shall pay the Executive's full salary to the Executive at
the rate in effect at the commencement of any such period, together with all
compensation and benefits payable to the Executive under the terms of any
compensation or benefit plan, program or arrangement maintained by the Company
during such period, until the Executive becomes eligible for benefits at least
equal to those to which the Executive would have been entitled under the long-
term disability
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insurance plan of the Company in effect immediately prior to the Change in
Control.
5.2 If the Executive's employment shall be terminated for any reason
following a Change in Control and during the term of this Agreement, the Company
shall pay the Executive's full salary to the Executive through the Date of
Termination at the rate in effect at the time the Notice of Termination is
given, together with all compensation and benefits payable to the Executive
through the Date of Termination under the terms of any compensation or benefit
plan, program or arrangement maintained by the Company during such period.
5.3 If the Executive's employment shall be terminated for any reason
following a Change in Control and during the term of this Agreement, the Company
shall pay or make available to the Executive any rights, compensation and
benefits which are vested in the Executive or which the Executive has or is
otherwise entitled to receive under any plan or program of the Company
(including without limitation any retirement plan or any welfare plan providing
post-retirement benefits) to the Executive as such rights, compensation or
benefits become due. Such rights, compensation and benefits shall be determined
under, and paid or made available in accordance
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with, the Company's applicable retirement, insurance and other compensation or
benefit plans, programs and arrangements.
6. Severance Payments.
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6.1 Subject to Section 6.2 hereof, the Company shall pay the Executive the
payments described in this Section 6.1 (the "Severance Payments") upon the
termination of the Executive's employment following a Change in Control and
during the term of this Agreement, in addition to the payments and benefits
described in Section 5 hereof, unless such termination is (i) by the Company or
the Bank for Cause, (ii) by reason of death or Retirement, or (iii) by the
Executive without Good Reason. The Executive's employment shall be deemed to
have been terminated following a Change in Control by the Company without Cause
or by the Executive with Good Reason if the Executive's employment is terminated
prior to a Change in Control without Cause at the direction of a Person who has
entered into an agreement with the Company the consummation of which will
constitute a Change in Control or if the Executive terminates his employment
with Good Reason prior to a Change in Control (determined by treating a
Potential Change in Control as a Change in Control in applying the definition of
Good Reason) if the circum-
7
stance or event which constitutes Good Reason occurs at the direction of
such Person.
(A) In lieu of any further salary payments to the Executive for
periods subsequent to the Date of Termination and in lieu of any severance
benefits otherwise payable to the Executive under any then existing broad-
based employee severance plan, the Company shall pay to the Executive a
lump sum severance payment, in cash, equal to three (3) times the sum of
(i) the higher of the Executive's annual base salary in effect immediately
prior to the occurrence of the event or circumstance upon which the Notice
of Termination is based or in effect immediately prior to the Change in
Control and (ii) the higher of the average of the annual amounts paid to,
or approved for, the Executive pursuant to the Performance Recognition
Opportunity Plan, or any successor plan, with respect to the three (3)
years (or the number of years employed, if less) immediately preceding (a)
the occurrence of the event or circumstance upon which the Notice of
Termination is based or (b) the Change in Control.
(B) In lieu of any further life, disability, accident and health
insurance benefits
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otherwise due to the Executive, the Company shall pay to the Executive a
lump sum amount, in cash, equal to the cost to the Company (as determined
by the Company in good faith with reference to its most recent actual
experience) of providing such benefits, to the extent that the Executive is
eligible to receive such benefits immediately prior to the Notice of
Termination (without giving effect to any reduction in such benefits
subsequent to a Change in Control which reduction constitutes Good Reason),
for a period of three (3) years commencing on the Date of Termination.
(C) The Executive shall continue to accrue service credit (for all
purposes, including without limitation benefit accrual) under the Pension
Plan, Thrift Plan, the Bonus SERP, the Excess SERP or any successor plans
thereto, at the compensation level equal to the amount determined in
accordance with Section 6.1(A) hereof for a period of three (3) years.
6.2 Notwithstanding any other provisions of this Agreement, in the event that
any payment or benefit received or to be received by the Executive in connection
with a Change in Control or the termination of the
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Executive's employment (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Company, any Person whose actions
result in a Change in Control or any Person affiliated with the Company or such
Person) (all such payments and benefits, including the Severance Payments, being
hereinafter called "Total Payments") would be subject (in whole or part) to the
Excise Tax, then the Severance Payments shall be reduced to the extent necessary
so that no portion of the Total Payments is subject to the Excise Tax (after
taking into account any reduction in the Total Payments provided by reason of
section 280G of the Code in such other plan, arrangement or agreement) if (A)
the net amount of such Total Payments, as so reduced (and after deduction of the
net amount of federal, state and local income tax on such reduced Total
Payments), is greater than (B) the excess of (i) the net amount of such Total
Payments, without reduction (but after deduction of the net amount of federal,
state and local income tax on such Total Payments) over (ii) the amount of
Excise Tax to which the Executive would be subject in respect of such Total
Payments. For purposes of determining whether and the extent to which the Total
Payments will be subject to the Excise Tax, (i) no portion of the Total
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Payments the receipt or enjoyment of which the Executive shall have effectively
waived in writing prior to the Date of Termination shall be taken into account,
(ii) no portion of the Total Payments shall be taken into account which, in the
opinion of tax counsel selected by the Company's independent auditors and
reasonably acceptable to the Executive, does not constitute a "parachute
payment" within the meaning of section 280G(b)(2) of the Code, (including by
reason of section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax,
no portion of such Total Payments shall be taken into account which constitutes
reasonable compensation for services actually rendered, within the meaning of
section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to
such reasonable compensation, and (iii) the value of any non-cash benefit or any
deferred payment or benefit included in the Total Payments shall be determined
by the Company in accordance with the principles of sections 280G(d)(3) and (4)
of the Code. Prior to the payment date set forth in Section 6.3 hereof, the
Company shall provide the Executive with its calculation of the amounts referred
to in this Section and such supporting materials as are reasonably necessary for
the Executive to evaluate the Company's calculations. If the Executive objects
to
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the Company's calculations, the Company shall pay to the Executive such portion
of the Severance Payments (up to 100% thereof) as the Executive determines is
necessary to result in the Executive receiving the greater of clauses (A) and
(B) of this Section.
6.3 The payments provided for in Section 6.1 hereof shall be made not later
than the fifth day following the Date of Termination; however, if the amounts of
such payments, and the limitation on such payments set forth in Section 6.2
hereof, cannot be finally determined on or before such day, the Company shall
pay to the Executive on such day an estimate, as determined by the Executive, of
the minimum amount of such payments to which the Executive is clearly entitled
and shall pay the remainder of such payments (together with interest at the rate
provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can
be determined but in no event later than the thirtieth (30th) day after the Date
of Termination. In the event that the amount of the estimated payments exceeds
the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to the Executive, payable on the fifth (5th)
business day after demand by the Company
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(together with interest at the rate provided in section 1274(b)(2)(B) of the
Code).
6.4 The Company also shall pay to the Executive all legal fees and expenses
incurred by the Executive in seeking to obtain or enforce any benefit or right
provided by this Agreement, in accordance with Section 14 hereof (including
without limitation fees and expenses incurred in seeking to secure the
Executive's rights provided by Section 14 hereof). Such payments shall be made
within five (5) business days after delivery of the Executive's written requests
for payment accompanied with such evidence of fees and expenses incurred as the
Company reasonably may require.
7. Termination Procedures and Compensation During Dispute.
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7.1 Notice of Termination. After a Change in Control and during the term of
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this Agreement, any purported termination of the Executive's employment (other
than by reason of death) shall be communicated by written Notice of Termination
from one party hereto to the other party hereto in accordance with Section 10
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and
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shall set 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. Further, a Notice of Termination for Cause is required
to include a copy of a resolution duly adopted by the affirmative vote of not
less than three quarters (3/4) of the entire membership of the Board at a
meeting of the Board which was called and held for the purpose of considering
such termination (after reasonable notice to the Executive and an opportunity
for the Executive, together with the Executive's counsel, to be heard before the
Board) finding that, in the good faith opinion of the Board, the Executive was
guilty of conduct set forth in clause (i) or (ii) of the definition of Cause
herein, and specifying the particulars thereof in detail.
7.2 Date of Termination. "Date of Termination", with respect to any
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purported termination of the Executive's employment after a Change in Control
and during the term of this Agreement, shall mean the date specified in the
Notice of Termination (which, in the case of a termination by the Company or the
Bank, shall not be less than thirty (30) days (except in the case of a
termination for Cause) and, in the case of a termination by the Executive, shall
not be less than fifteen
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(15) days nor more than sixty (60) days, respectively, from the date such Notice
of Termination is given).
7.3 Dispute Concerning Termination. If within fifteen (15) days after any
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Notice of Termination is given or, if later, prior to the Date of Termination
(as determined without regard to this Section 7.3), the party receiving such
Notice of Termination notifies the other party that a dispute exists concerning
the termination, the Date of Termination shall be the date on which the dispute
is finally resolved, either by mutual written agreement of the parties or by a
final judgment, order or decree of a court of competent jurisdiction provided
that the Date of Termination shall be extended by a notice of dispute only if
such notice is given in good faith and the party giving such notice pursues the
resolution of such dispute with reasonable diligence.
7.4 Compensation During Dispute. If a purported termination occurs following
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a Change in Control and during the term of this Agreement, and such termination
is disputed in accordance with Section 7.3 hereof, the Company shall continue to
pay the Executive the full compensation in effect when the notice giving rise to
the dispute was given (including without limitation salary) and continue the
Executive as a participant in all com-
15
pensation, benefit and insurance plans in which the Executive was participating
when the notice giving rise to the dispute was given, until the dispute is
finally resolved in accordance with Section 7.3 hereof. Amounts paid under this
Section 7.4 are in addition to all other amounts due under this Agreement (other
than those due under Section 5.2 hereof) and shall not be offset against or
reduce any other amounts due under this Agreement.
8. No Mitigation. If the Executive's employment by the Company or the Bank
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is terminated during the term of this Agreement, the Executive is not required
to seek other employment or to attempt in any way to reduce any amounts payable
to the Executive by the Company pursuant to Section 6 or Section 7.4 hereof.
Further, the amount of any payment or benefit provided for in Section 6 or
Section 7.4 hereof shall not be reduced by any compensation earned by the
Executive as the result of employment by another employer, by retirement
benefits, by offset against any amount claimed to be owed by the Executive to
the Company or the Bank, or otherwise.
9. Successors; Binding Agreement.
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9.1 In addition to any obligations imposed by law upon any successor to the
Company, the Company will require any successor (whether direct or indirect, by
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purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume 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. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as the Executive would be entitled to hereunder if the Executive were to
terminate the Executive's employment for Good Reason after a Change in Control,
except that, for purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the Date of Termination.
9.2 This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive shall
die while any amount would still be payable to the Executive hereunder (other
than amounts which, by their terms, terminate upon the death of the Executive)
if the Executive had continued to live, all
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such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the executors, personal representatives or
administrators of the Executive's estate.
10. Notices. For the purpose of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below, or to such other address
as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
actual receipt:
To the Company:
BankBoston Corporation
100 Federal Street
Boston, MA 02110
Attention: Director, Human Resources
Copy to: General Counsel
To the Executive:
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11. Miscellaneous. No provision of this Agreement may be modified, waived or
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discharged unless such waiver, modification or discharge is agreed to in writing
and signed by the Executive and such officer as may be specifically designated
by the Board. Except as expressly provided herein, no waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the Commonwealth
of Massachusetts, and this Agreement shall be an instrument under seal. All
references to sections of the Exchange Act or the Code shall be deemed also to
refer to any successor provisions to such sections. Any payments provided for
hereunder shall be paid net of any applicable withholding required under
federal, state or local law and any additional withholding to which the
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Executive has agreed. The obligations of the Company and the Executive under
Sections 6, 7, 8 and 14 hereof shall survive the expiration of the term of this
Agreement.
12. Validity. The invalidity or unenforceability of any provision of this
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Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
13. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. Settlement of Disputes; Arbitration. All claims by the Executive for
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benefits under this Agreement shall be directed to and determined by the Board
and shall be in writing. Any denial by the Board of a claim for benefits under
this Agreement shall be delivered to the Executive in writing and shall set
forth the specific reasons for the denial and the specific provisions of this
Agreement relied upon. Any further dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Boston, Massachusetts, in accordance with the rules of the American Arbitration
Association then in effect.
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Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The Executive shall, however, be entitled to seek specific
performance of the Executive's right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
15. Definitions. For purposes of this Agreement, the following terms shall
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have the meanings indicated below:
(A) "Bank" shall mean the Company's subsidiary, BankBoston, N.A., or if
applicable, any other direct or indirect subsidiary of the Company by which the
Executive is then employed during the term of this Agreement.
(B) "Beneficial Owner" shall have the meaning defined in Rule 13d-3 under the
Exchange Act.
(C) "Board" shall mean the Board of Directors of the Company.
(D) "Bonus SERP" shall mean BankBoston, N.A. Bonus Supplemental Employee
Retirement Plan.
(E) "Cause" for termination by the Company or the Bank of the Executive's
employment, after any Change in Control, shall mean (i) the willful and
continued failure by the Executive to substantially perform the
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Executive's duties with the Company or the Bank (other than any such failure
resulting from the Executive's incapacity due to physical or mental illness or
any such actual or anticipated failure after the issuance of a Notice of
Termination for Good Reason by the Executive pursuant to Section 7.1 hereof)
after a written demand for substantial performance is delivered to the Executive
by the Board, which demand specifically identifies the manner in which the Board
believes that the Executive has not substantially performed the Executive's
duties, or (ii) the willful engaging by the Executive in gross misconduct which
is demonstrably and materially injurious to the Company or any of its
subsidiaries, monetarily or otherwise. For purposes of clauses (i) and (ii) of
this definition, no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the Executive's act, or failure to
act, was in the best interest of the Company.
(F) A "Change in Control" shall be deemed to have occurred if the conditions
set forth in any one of the following paragraphs shall have been satisfied:
(I) There is an acquisition of control of the Company as defined in
Section
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2(a)(2) of the Bank Holding Company Act of 1956, or any similar successor
provision, as in effect at the time of the acquisition; or
(II) Continuing Directors constitute two-thirds (2/3) or less of the
membership of the Board, whether as the result of a proxy contest or for any
other reason or reasons; or
(III) Any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing twenty-five percent
(25%) or more of the combined voting power of the Company's then outstanding
voting securities; or
(IV) There is a change in control of the Company of a nature that would be
required to be reported in response to item 1(a) of Current Report on Form 8-K
or item 6(e) of Schedule 14A of Regulation 14A or any similar item, schedule
or form under the Exchange Act, as in effect at the time of the change,
whether or not the Company is then subject to such reporting requirement,
including without limitation any merger or consolidation of the Company with
any other corporation, other than (i)
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a merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving or parent entity) forty-five percent (45%) or more of the combined
voting power of the voting securities (entitled to vote generally for the
election of directors) of the Company or such surviving or parent entity
outstand ing immediately after such merger or consolidation and which would
result in those persons who are Continuing Directors immediately prior to such
merger or consolidation constituting more than two-thirds (2/3) of the
membership of the Board or the board of such surviving or parent entity
immediately after, or subsequently at any time as contemplated by or as a
result of, such merger or consolidation or (ii) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no Person acquired twenty-five percent (25%) or more of
the
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combined voting power of the Company's then outstanding securities; or
(V) the stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets (or any transaction having a
similar effect).
(G) "Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
(H) "Company" shall mean BankBoston Corporation and (except in determining,
under Section 15(F) hereof, whether or not any Change in Control of the Company
has occurred in connection with such succession) any successor to its
business and/or assets which assumes or agrees to perform this Agreement, by
operation of law or otherwise. Payments or benefits from the Company shall
include those from the Bank.
(I) "Compensation Committee" shall mean the Compensation and Nominating
Committee of the Board.
(J) "Continuing Director" shall mean any director (i) who has continuously
been a member of the Board since not later than the date of a Potential Change
in Control or (ii) who is a successor of a director de-
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scribed in clause (i), if such successor (and any intervening successor) shall
have been recommended or elected to succeed a Continuing Director by a majority
of the then Continuing Directors.
(K) "Date of Termination" shall have the meaning stated in Section 7.2
hereof.
(L) "Excess SERP" shall mean BankBoston, N.A. Excess Benefit Supplemental
Employee Retirement Plan.
(M) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
(N) "Executive" shall mean the individual named in the first paragraph of
this Agreement.
(O) "Good Reason" for termination by the Executive of the Executive's
employment shall mean the occurrence (without the Executive's express written
consent) of any one of the following acts by the Company or the Bank, or
failures by the Company or the Bank to act, unless, in the case of any act or
failure to act described in paragraph (I), (V), (VI) or (VII) below, such act or
failure to act is corrected prior to the Date of Termination specified in the
Notice of Termination given in respect thereof or, in the case of paragraph
(III) below, such act is not objected to in writing by the Executive within four
(4) months after notification by
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the Company to the Executive of the Company's or the Bank's intention to take
the action contemplated by such paragraph (III):
(I) the assignment to the Executive of any duties inconsistent with the
Executive's status as a senior executive officer of the Company or the Bank or
a meaningful alteration, adverse to the Executive, in the nature or status of
the Executive's responsibilities (other than reporting responsibilities) from
those in effect immediately prior to the Change in Control;
(II) a reduction by the Company or the Bank in the Executive's annual base
salary as in effect on the date hereof or as the same may be increased from
time to time except for across-the-board salary reductions similarly affecting
all senior executives of the Company or the Bank, as the case may be, and all
senior executives of any Person in control of the Company;
(III) the Company's or the Bank's requiring the Executive to be based
anywhere
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other than the Boston Metropolitan Area (or, if different, the metropolitan
area in which the Company's or the Bank's principal executive offices are
located immediately prior to the Change in Control) except for required travel
on the Company or Bank business to an extent substantially consistent with the
Executive's present business travel obligations;
(IV) the failure by the Company, without the Executive's consent, to pay
to the Executive any portion of the Executive's current compensation, or to
pay to the Executive any portion of an installment of deferred compensation
under any deferred compensation program of the Company, within fourteen (14)
days of the date such compensation is due;
(V) the failure by the Company to continue in effect any compensation plan
in which the Executive participates immediately prior to the Change in Control
which is material to the Executive's total compensation, including without
limitation the Company's stock award, incentive compensation and bonus plans,
unless an equitable arrangement (embodied in an
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ongoing substitute or alternative plan) has been made with respect to such
plan, or the failure by the Company to continue the Executive's participation
therein (or in such substitute or alternative plan) on a basis not materially
less favorable, both in terms of the amount of benefits provided and the level
of the Executive's participation relative to other participants, as existed at
the time of the Change in Control;
(VI) the failure by the Company to continue to provide the Executive with
benefits substantially similar to those enjoyed by the Executive under any of
the Company's pension, life insurance, medical, health and accident, or
disability plans in which the Executive was participating at the time of the
Change in Control, the taking of any action by the Company which would
directly or indirectly materially reduce any of such benefits or deprive the
Executive of any material fringe benefit enjoyed by the Executive at the time
of the Change in Control, or the failure by the Company to provide the
Executive with the number of
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paid vacation days to which the Executive is entitled on the basis of years of
service with the Company in accordance with the Company's normal vacation
policy in effect at the time of the Change in Control; or
(VII) any purported termination of the Executive's employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of
Section 9.1 hereof; for purposes of this Agreement, no such purported
termination shall be effective.
The Executive's right to terminate the Executive's employment for Good Reason
shall not be affected by the Executive's incapacity due to physical or mental
illness. The Executive's continued employment shall not constitute consent to,
or a waiver of rights with respect to, any act or failure to act constituting
Good Reason hereunder.
(P) "Notice of Termination" shall have the meaning stated in Section 7.1
hereof.
(Q) "Pension Plan" shall mean the Retirement Plan of BankBoston, N.A. and
Certain Affiliated Companies.
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(R) "Person" shall have the meaning given in Section 3(a)(9) of the Exchange
Act, as modified and used in Sections 13(d) and 14(d) thereof; however, a
Person shall not include (i) the Company or any of its subsidiaries, (ii) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or any of its subsidiaries, (iii) an underwriter temporarily holding
securities pursuant to a registered offering of such securities in accordance
with an agreement with the Company, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(S) "Potential Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have been
satisfied:
(I) the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control;
(II) the Company or any Person publicly announces an intention to take or
to
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consider taking actions which, if consummated, would constitute a Change in
Control;
(III) any Person becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing fifteen percent (15%) or more of the
combined voting power of the Company's then outstanding securities (entitled
to vote generally for the election of directors); or
(IV) the Board adopts a resolution to the effect that, for purposes of
this Agreement, a Potential Change in Control has occurred.
(T) "Retirement" shall be deemed the reason for the termination of the
Executive's employment if the Executive voluntarily retires and receives
benefits under the Pension Plan or other applicable retirement plan then
maintained by the Company and in effect immediately prior to the Change in
Control, or in accordance with any retirement arrangement established with the
Executive's consent with respect to the Executive.
(U) "Severance Payments" shall mean those payments described in Section 6.1
hereof.
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(V) "Thrift Plan" shall mean the Thrift-Incentive Plan of BankBoston, N.A.
and Certain Affiliated Companies.
(W) "Total Payments" shall mean those payments described in Section 6.2
hereof.
BANKBOSTON CORPORATION
By: __________________________
Name: Helen G. Drinan
Title: Executive Vice President, Human Resources
__________________________
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