EXHIBIT 10(a)
BANKNORTH GROUP, INC.
AMENDED AND RESTATED
SEVERANCE AGREEMENT
WILLIAM J. RYAN
This Amended and Restated Severance Agreement (this "Agreement") is
made and entered into as of the 1st day of January, 2003, by and between
Banknorth Group, Inc. (the "Company") and William J. Ryan (the "Executive");
W I T N E S S E T H:
WHEREAS, the Company and the Executive are parties to a certain
Severance Agreement dated January 1, 2000, as amended by a First Amendment to
Severance Agreement dated as of May 22, 2001 (as so amended, the "Prior
Agreement"); and
WHEREAS, the Company and the Executive wish to amend and restate the
Prior Agreement in its entirety as hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Executive hereby agree, and amend and restate the Prior Agreement in its
entirety, as follows:
1. Definitions
(a) Accrued Benefits means:
(i) All salary earned or accrued through the date the
Executive's employment is terminated;
(ii) reimbursement for any and all monies advanced in
connection with the Executive's employment for reasonable and necessary
expenses incurred by the Executive through the date the Executive's
employment is terminated;
(iii) any and all other compensation previously earned by
the Executive and deferred under or pursuant to any deferred
compensation plan or plans of the Company then in effect together with
any interest or deemed earnings thereon;
(iv) any bonus earned by the Executive for a Year or other
performance period ending prior to the Year or other performance period
in which employment terminates, but not yet paid to the Executive,
under any bonus or incentive compensation plan or plans in which the
Executive is a participant;
(v) to the extent not previously paid to the Executive
for the Year in which employment terminates, a pro rata portion of the
maximum Annual Bonus payable to the Executive for the Year in which
employment terminates under any bonus or incentive compensation plan or
plans of the Company in which the Executive is a participant,
determined as if the Executive had remained in employment for the full
Year and prorated based upon weeks, including partial weeks, of
employment during that Year;
(vi) to the extent not previously paid to the Executive
for the "Performance Period" (as defined in the EIP) in which
employment terminates, a pro rata Long-Term Incentive Award in an
amount determined as described in Section 5 of the EIP;
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(vii) to the extent not previously paid or provided to the
Executive, all other payments and benefits to which the Executive may
be entitled under the terms of any applicable compensation or benefit
plan, program or arrangement of the Company.
(b) Act means the Securities Exchange Act of 1934, as amended.
(c) Affiliate of any specified persons means any other person
that, directly or indirectly, through one or more intermediaries, controls, or
is controlled by, or is under direct or indirect common control with such
specified person. For the purposes of this definition, "control" means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
(d) Annual Bonus means any bonus or incentive award under any
bonus or incentive compensation plan, program or arrangement of the Company in
which the Executive is a participant the performance period for which is or was
initially scheduled to be one year or less.
(e) Annual Compensation means the sum of:
(i) the Executive's annual base salary at the rate in
effect on the date of a termination of employment as described in
Section 3 or in Section 7(d) (or, in the event of a termination for
"Good Reason" under Section 1(k)(i)(A) below, the annual base salary as
in effect immediately before the actions giving rise to Good Reason);
plus
(ii) the greatest of the Annual Bonuses, if any, either
paid or accrued in either the Year of the Change in Control or the
immediately preceding Year.
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(f) Base Amount means an amount equal to the Executive's
Annualized Includable Compensation for the Base Period as defined in Section
280G(d)(1) and (2) of the Code (as hereinafter defined).
(g) Bonus (whether or not capitalized) means any bonus or
incentive award (including any Annual Bonus or Long-Term Incentive Award) under
any bonus or incentive compensation plan, program or arrangement of the Company
in which the Executive is a participant.
(h) Cause means (i) the executive's conviction of, or plea of nolo
contendere to, a felony; or (ii) willful and intentional misconduct, willful
neglect, or gross negligence in the performance of the Executive's duties, which
has caused a demonstrable and serious injury to the Company, monetary or
otherwise.
The Executive shall be given written notice that the Company intends to
terminate his employment for Cause. Such written notice shall specify the
particular acts, or failures to act, on the basis of which the decision to so
terminate employment was made.
In the case of a termination for Cause as described in clause (ii),
above, the Executive shall be given the opportunity within thirty (30) days of
the receipt of such notice to meet with the Board to defend such acts, or
failures to act, prior to termination. The Company may suspend the Executive's
title and authority pending such meeting, and such suspension shall not
constitute "Good Reason," as defined in subsection (n) below.
(i) "Change in Control" of the Company shall mean a Change in
Control of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Act or any
successor thereto, provided that without limiting the
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foregoing, a Change in Control of the Company also shall mean the occurrence of
any of the following events:
(i) any "person" (as defined under Section 3(a)(9) of the Act) or
"group" of persons (as provided under Section 13d-3 of the Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 or otherwise under the Act),
directly or indirectly (including as provided in Rule 13d-3(d)(1) of the Act),
of capital stock of the Company the holders of which are entitled to vote for
the election of directors ("voting stock") representing that percentage of the
Company's then outstanding voting stock (giving effect to the deemed ownership
of securities by such person or group, as provided in Rule 13d-3(d)(1) of the
Act, but not giving effect to any such deemed ownership of securities by another
person or group) equal to or greater than twenty-five percent (25%) of all such
voting stock;
(ii) during any period of twenty four consecutive months,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (including for this purpose any new director whose
election or nomination for election by the Company's shareholders was approved
by a vote of at least a majority of the directors then still in office who were
directors at the beginning of such period) cease for any reason to constitute at
least a majority of the Board of Directors of the Company (excluding any Board
seat that is vacant or otherwise unoccupied).
(iii) there shall be consummated any consolidation, merger, stock
for stock exchange or similar transaction (collectively, "Merger Transactions")
involving securities of the Company in which holders of voting stock of the
Company immediately prior to such consummation own, as a group, immediately
after such consummation, voting stock of the
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Company (or, if the Company does not survive the Merger Transaction, voting
securities of the corporation surviving such transaction) having less than 50%
of the total voting power in an election of directors of the Company (or such
other surviving corporation).
(j) Code means the Internal Revenue Code of 1986, as amended.
(k) Disability means a disability entitling the Executive to
payments under the Company's long-term disability plan applicable to the
Executive.
(l) Effective Date means the date this Agreement is executed by
the parties.
(l) EIP means the Banknorth Group, Inc. Executive Incentive Plan
as amended and in effect from time to time, and any successor plan.
(m) Employment Period means a period commencing on the date of a
Change in Control of the Company and ending on the earlier of (i) the last day
of the twenty-fourth month following the month in which the Change in Control
occurs or (ii) the Executive's Normal Retirement Date.
(n) Good Reason means:
(i) any breach of this Agreement by the Company,
including without limitation (A) any reduction during the Employment Period in
the amount of the Executive's base salary or aggregate benefits as in effect
from time to time, (B) failure to provide the Executive with the same fringe
benefits that were provided to the Executive immediately prior to a Change in
Control of the Company, or with a package of fringe benefits (including paid
vacations) that, though one or more of such benefits may vary from those in
effect immediately prior to such a Change in Control, is substantially
comparable in all material respects to such fringe benefits
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taken as a whole, or (C) any other breach by the Company of its obligations
contained in Section 6 below;
(ii) without the Executive's express written consent, the
assignment to the Executive of any duties which are materially inconsistent with
the Executive's positions, duties, responsibilities and status immediately prior
to the Change in Control of the Company, a material change in the Executive's
reporting responsibilities, titles or offices as an employee and as in effect
immediately prior to the Change in Control, or a significant reduction in the
Executive's title, duties or responsibilities, or in the level of his support
services as in effect immediately prior to the Change in Control;
(iii) the relocation of the Executive's principal place of
employment, without the Executive's written consent, to a location outside the
same metropolitan area in which the Executive was employed at the time of such
Change in Control, or the imposition of any requirement that the Executive spend
more than ninety (90) business days per year at a location other than such
principal place of employment; or
(iv) any purported termination of the Executive's
employment for Cause or Disability which is not effected pursuant to a Notice of
Termination satisfying the requirements of paragraph (q) below; or
(v) a change in the ownership of the Company (either
accompanying or following the Change in Control), such that the Executive's
duties, reporting responsibilities, or authority is no longer consistent with
those of an executive of an independent company.
Upon the occurrence of any of the events described in (i), (ii), (iii),
(iv) or (v) above, the Executive shall give the Company written notice that such
event constitutes Good Reason, and
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the Company shall thereafter have thirty (30) days in which to cure. If the
Company has not cured in that time, the event shall constitute Good Reason.
(o) Long-Term Incentive Award means an incentive award under the
EIP the performance period for which is or was initially scheduled to be in
excess of one year.
(p) Normal Retirement Date means Normal Retirement Date as defined
in the Retirement Plan.
(q) Notice of Termination shall mean a notice which shall indicate
the specific termination provision relied upon in this Agreement and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated.
` (r) Person or Group means a "person" or "group," as defined in
Section 1(g)(i) hereof.
(s) Plan Year with respect to any of the Retirement Plan or the
401(k) Plan, the "plan year" as defined in such plan.
(t) Retirement Plan means the Banknorth Group, Inc. Retirement
Plan, as amended and in effect from time to time and any successor plan.
(u) SERP Agreement means the Amended and Restated Supplemental
Retirement Agreement dated January 1, 2002 between the Executive and the
Company, as amended.
(v) Year means a calendar year unless otherwise specifically
provided.
(w) 401(k) Plan means the Banknorth Group, Inc. 401(k) Plan dated
January 1, 2001, as amended, which plan constitutes a continuation and merger of
the Banknorth Group, Inc.
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Thrift Incentive Plan and the Banknorth Group, Inc. Profit Sharing and Employee
Stock Ownership Plan.
2. Term of Agreement.
This Agreement shall begin on the Effective Date and shall continue
until the third anniversary of such date, provided that, on the first
anniversary of the Effective Date, and on each succeeding anniversary, the term
shall be renewed for an additional period of one year unless either party has
given written notice that the term is not so renewed, which notice must be
delivered to the other party at least ninety (90) days prior to the date of any
such renewal, and further provided that if a Change in Control of the Company
occurs during such term, the term shall in all events continue through the last
day of the Employment Period. This Agreement is also subject to earlier
termination as provided in Section 3 below. All rights and obligations hereunder
shall survive to the extent necessary to the intended enforcement thereof.
3. Termination of Employment Prior to a Change in Control.
(a) The Company and the Executive shall each retain the
right to terminate the employment of the Executive at any time prior to a Change
in Control of the Company. In the event the Executive's employment is terminated
prior to a Change in Control of the Company, this Agreement shall, except as
provided in subsection (b) below, be terminated and of no further force and
effect, and any and all rights and obligations of the parties hereunder shall
cease.
(b) If the Executive's employment is terminated by the Company
prior to the occurrence of a Change in Control of the Company, and if it can be
shown that the Executive's termination (i) was at the direction or request of a
third party that had taken steps reasonably calculated to effect the Change in
Control of the Company thereafter, or (ii) otherwise occurred
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in connection with, or in anticipation of, the Change in Control of the Company,
the Executive shall have the rights described in Section 7(d) below, as if a
Change in Control of the Company had occurred on the date immediately preceding
such termination.
4. Employment Following a Change in Control.
If a Change in Control of the Company occurs when the Executive is
employed by the Company, the Company will continue thereafter to employ the
Executive, and the Executive will remain in the employ of the Company, during
the Employment Period, in accordance with the terms and provisions of this
Agreement.
5. Duties.
During the Employment Period, the Executive shall serve the Company in
such capacities and positions as may be assigned by the Company consistent with
the Executive's capacities and positions immediately prior to the Change in
Control and shall devote the Executive's best efforts and all of the Executive's
business time, attention and skill to the business and affairs of the Company,
as such business and affairs now exist and as they may hereafter be conducted.
6. Compensation.
During the Employment Period, the Executive shall be compensated by the
Company as follows:
(a) the Executive shall receive, at such intervals and in
accordance with such standard policies as in effect immediately prior to the
Change in Control of the Company, an annual base salary not less than the
Executive's annual base salary as in effect immediately prior to the Change in
Control of the Company, subject to adjustment as hereinafter provided;
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(b) the Executive shall be included in all plans
providing incentive compensation to executives, including but not limited to
bonus, deferred compensation, annual or other incentive compensation,
supplemental pension, stock ownership, stock option, stock appreciation, stock
bonus and similar or comparable plans as any such plans are extended by the
Company from time to time to senior corporate officers, key employees and other
employees of comparable status;
(c) the Executive shall be reimbursed, at such intervals
and in accordance with such standard policies as may be in effect on the date of
the Change in Control of the Company, for any and all monies advanced in
connection with the Executive's employment for reasonable and necessary expenses
incurred by the Executive on behalf of the Company, including travel expenses;
(d) the Executive shall be allowed to participate, on the
same basis as applicable to other employees of comparable status and position,
in any and all plans, programs or arrangements covering employee benefits or
perquisites, including but not limited to the following: group medical
insurance, hospitalization benefits, disability benefits, medical benefits,
dental benefits, pension benefits, profit sharing and stock bonus plans;
(e) the Executive shall receive annually not less than
the amount of paid vacation and not fewer than the number of paid holidays
received annually immediately prior to the Change in Control of the Company or
available annually to other employees of comparable status and position with the
Company.
During the Employment Term the Board of Directors of the Company, or an
appropriate committee thereof, will consider and appraise, at least annually,
the contributions of the
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Executive to the Company's operating efficiency, growth, production and profits
and, in accordance with past practice, due consideration shall be given to the
upward adjustment of the Executive's compensation rate, at least annually,
commensurate with increases generally given to other senior corporate officers
and key employees and as the scope of the Executive's duties expands.
7. Termination of Employment.
Any termination by the Company or the Executive of the Executive's
employment during the Employment Period shall be communicated by written Notice
of Termination to the Executive if such notice is delivered by the Company, and
to the Company if such notice is delivered by the Executive. The Notice of
Termination shall comply with the requirements of Section 17 below.
(a) Termination for Disability. If during the Employment
Period, the Executive's employment is terminated on account of the Executive's
Disability, the Executive shall receive any Accrued Benefits, and shall remain
eligible for all benefits as provided pursuant to the terms of any long-term
disability programs of the Company in effect at the time of such termination.
(b) Termination on the Executive's Death. If, during the
Employment Period, the Executive's employment is terminated on account of the
Executive's death, the Executive's estate or his designated beneficiary (or
beneficiaries), as applicable, shall receive all the Executive's Accrued
Benefits.
(c) Voluntary Termination or Termination for Cause. If,
during the Employment Period, (i) the Executive shall terminate employment with
the Company other than
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for Good Reason, or (ii) the Executive's employment is terminated for Cause, the
Executive shall receive from the Company only the Accrued Benefits.
(d) Termination by the Company Without Cause or by the
Executive for Good Reason. If, during the Employment Period, the Executive's
employment with the Company is terminated by the Company other than for Cause,
or by the Executive for Good Reason, then:
(i) the Executive shall receive from the Company
the Accrued Benefits, which shall be paid within ten (10) days after the later
of the date of termination of the Executive's employment and the date of the
Change in Control; provided that (x) for this purpose, Accrued Benefits shall
not include any entitlement to severance under any Company severance policy
generally applicable to the Company's salaried employees and (y) to the extent
that any Annual Bonus or Long-Term Incentive Award to be paid to the Executive
following a Change in Control pursuant to the EIP is included in Accrued
Benefits hereunder and paid to the Executive, such payment shall be deemed to
satisfy the Company's obligation, if any, to make payment of the same pursuant
to the EIP;
(ii) the Executive shall receive from the
Company, no less than ten (10) days following termination of his employment, a
lump sum payment (the "Termination Payment") equal to three (3) times the Annual
Compensation;
(iii) for purposes of determining the Executive's
benefit under the SERP Agreement, the Executive shall be credited with 36
additional months of age and of service determined as follows:
(A) The additional 36 months of age and
service shall be applied for purposes of benefit accrual, vesting, eligibility
for early retirement, subsidized early
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retirement factors, actuarial equivalence and any other purposes under the
Retirement Plan and the SERP Agreement.
(B) Any provision under the Retirement
Plan or the SERP Agreement prohibiting the accrual of any additional benefits
after the Executive has been credited with more than a stated number of years of
service shall be disregarded.
(C) For purposes of determining the
amount of the Executive's benefit under the SERP Agreement, the reduction in
respect of the benefit paid under the Retirement Plan shall be based on the
Executive's actual Retirement Plan benefit (that is, without any additional
deemed service).
(D) For purposes of determining the
Early Retirement Benefit (as defined in the SERP Agreement) and other forms of
benefit under the SERP Agreement, the reductions for early commencement of
payment of Early Retirement Benefits described in the second sentence of Section
5.2 of the SERP Agreement shall not apply.
(E) The Benefit Computation Base (as
defined in the SERP Agreement) shall be determined as if it were being
calculated at the end of the 36 month period of service credited to the
Executive under this Section 7(d)(iii) and as if during such 36 additional month
period the Executive's annualized compensation was the same as such compensation
for (I) the Year during which the Executive's employment is terminated, or, (II)
any Year before the Change in Control occurred, whichever is greater.
(F) Any amendment to the Retirement
Plan within the twelve (12) month period prior to the termination of the
Executive's employment shall be disregarded to
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the extent that the application of such amendment would decrease the total
amount of the benefits provided for in this Section 7(d)(iii).
(G) The Executive shall be entitled to
a lump sum distribution of his SERP in all events, and the Company shall not be
entitled to require payment over a longer period. If the Executive elects a lump
sum payment (i) the actuarial equivalent benefit shall be determined in
accordance with the provisions of the Retirement Plan as in effect immediately
prior to the Change in Control, or as in effect on termination of the
Executive's employment, whichever creates the greater benefit, and (ii) payment
shall be made within thirty (30) days following the later of (A) termination of
the Executive's employment, or (B) the date the Executive gives written notice
of the Executive's intent to elect a lump sum.
(iv) the Executive shall be paid a lump sum
amount equal to (A) the sum of (I) the total aggregate value of all
contributions, other than elective contributions by the Executive and employer
matching contributions relating thereto, and forfeitures allocated to the
Executive's account under the 401(k) Plan for the Plan Year ending immediately
prior to the Change of Control, or, if different, the Plan Year ending
immediately prior to the termination of the Executive's employment, whichever
Plan Year would produce the greater aggregate value, and (II) (A) the matching
contributions under the 401(k) Plan (or its successor) which would have been
credited under such plan on Executive's behalf, if the Executive had contributed
the maximum salary deferral contribution allowable under Section 402(g) of the
Code, for the calendar year in which the Executive's employment with the Company
was terminated, multiplied by (B) three (3).
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(v) all rights under any equity or long-term
incentive plan shall be fully vested to the extent not otherwise provided by the
terms of any such plan;
(vi) the Executive shall continue to be covered
at the expense of the Company by the same or equivalent hospital, medical,
dental, accident, disability and life insurance coverage as in effect for the
Executive immediately prior to termination of his employment, until the earlier
of (I) 36 months following termination of employment, or (II) the date the
Executive has commenced new employment and has thereby become eligible for
comparable benefits; provided that, with respect to any of the coverages
described above, if such coverage is provided through an insurance policy with
an insurance company unaffiliated with the Company (before or after the Change
in Control), and if under the terms of the applicable policy, it is not possible
to provide continued coverage (or if continued coverage under such policy would
increase the Company's cost allocable to the Executive by more than 100%), then
the Company shall pay the Executive a lump sum cash amount, no later than thirty
(30) days following termination of employment an amount equal to twice the
aggregate allocable cost of such coverage as applicable immediately prior to
termination of employment, such payment to be made without any discount for
present value.
8. Certain Supplemental Payments by the Company.
(a) In the event the Executive's employment is terminated
pursuant to Section 3(b) or 7(d) above, and if in connection therewith it is
determined that (i) part or all of the compensation and benefits to be paid to
the Executive constitute "parachute payments" under Section 280G of the Code,
and (ii) the payment thereof will cause the Executive to incur excise tax under
Section 4999 of the Code, the Company, on or before the date for payment of such
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excise tax, shall pay the Executive, in lump sum, an amount (the "Gross-Up
Amount") such that, after payment of all federal, state and local income tax and
any additional excise tax under Section 4999 of the Code in respect of the
Gross-Up Amount payment, the Executive will be fully reimbursed for the amount
of such excise tax.
(b) The determination of the Parachute Amount, the Base
Amount and the Gross-Up Amount, as well as any other calculations necessary to
implement this Section 8 shall be made by a nationally recognized accounting or
benefits consulting firm selected by the Executive and reasonably satisfactory
to the Company. The Consultant's fee shall be paid by the Company.
(c) As promptly as practicable following such
determination and the elections hereunder, the Company shall pay to or
distribute to or for the benefit of the Executive such amounts as are then due
to the Executive under this Agreement and shall promptly pay to or distribute
for the benefit of the Executive in the future such amounts as become due to the
Executive under this Agreement.
(d) As a result of the uncertainty in the application of
Section 280G of the Code at the time of an initial determination hereunder, it
is possible that payments will not have been made by the Company which should
have been made under clause (a) of this Section 8 ("Underpayment"). In the event
that there is a final determination by the Internal Revenue Service, or a final
determination by a court of competent jurisdiction, that an Underpayment has
been made and the Executive thereafter is required to make any payment of an
excise tax, income tax, any interest or penalty, the accounting or benefits
consulting firm selected under clause (b) above shall determine the amount of
the Underpayment that has occurred and any such
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Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive. If and to the extent that the Executive receives any tax refund from
the Internal Revenue Service that is attributable to payments by the Company
pursuant to this Section 8 of amounts in excess of the actual Gross-Up Amount as
finally determined by the Internal Revenue Service or a court of competent
jurisdiction ("Overpayment"), the Executive shall promptly pay to the Company
the amount of such refund that is attributable to the Overpayment (together with
any interest paid or credited thereon after taxes applicable thereto); provided,
however, the Executive shall not have any obligation to pay the Company any
amount pursuant to this Section 8(d) if and to the extent that any such
obligation would cause the arrangement to be treated as a loan or extension of
credit prohibited by applicable law.
9. Further Obligations of the Executive.
(a) Confidentiality. During and following the Executive's
employment by the Company, the Executive shall hold in confidence and not
directly or indirectly disclose or use or copy or make lists of any confidential
information or proprietary data of the Company, except to the extent authorized
in writing by the Board of Directors of the Company or required by any court or
administrative agency, other than to an employee of the Company or a person to
whom disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of duties as an executive of the Company.
Confidential information shall not include any information known generally to
the public or any information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that of the
Company. All records, files, documents and materials or copies thereof relating
to the Company's business which the Executive shall prepare, or use, or come
into contact with, shall
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be and remain the sole property of the Company and shall be promptly returned to
the Company upon termination of employment with the Company.
(b) Non-Solicitation. For the period from the Effective
Date until the second anniversary of the termination of the Executive's
employment, the Executive will not, directly or indirectly, contact, approach or
solicit for the purpose of offering employment to or hiring (whether as an
employee, consultant, agent, independent contractor or otherwise) any officer of
the Company, or an Affiliate of the Company , other than on behalf of the
Company or an Affiliate of the Company, without the prior written consent of the
Company.
10. Equitable Relief.
Executive acknowledges and agrees that in the event of a breach by
Executive of any of the provisions of Section 9 hereof, the Company shall suffer
irreperable harm for which monetary damages alone will constitute an
insufficient remedy. Consequently, in the event of any such breach, the Company
may, in addition to other rights and remedies existing in its favor, apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof, in each case without the requirement of posting a bond
or proving actual damages.
11. Expenses and Interest.
If, after a Change in Control of the Company, a good faith dispute
arises with respect to the enforcement of the Executive's rights under this
Agreement, or if any legal or arbitration proceeding shall be brought in good
faith to enforce or interpret any provision contained herein, or to recover
damages for breach hereof, the Executive shall recover from the Company any
reasonable attorney's fees and necessary costs and disbursements incurred as a
result of such
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dispute, and prejudgment interest on any money judgment or arbitration award
obtained by the Executive calculated at the rate of interest announced by
Peoples Heritage Bank, or any successor thereto, from time to time as its prime
rate from the date that payments to him should have been made under this
Agreement.
12. Payment Obligations Absolute. The Company's obligation during
and after the Employment Period to pay the Executive the compensation and to
make the arrangements provided herein shall be absolute and unconditional and
shall not be affected by any circumstances, including, without limitation, any
setoff, counterclaim, recoupment, defense or other right which the Company may
have against him or anyone else. All amounts payable by the Company hereunder
shall be paid without notice or demand. Each and every payment made hereunder by
the Company shall be final and the Company will not seek to recover all or any
part of such payment from the Executive or from whomsoever may be entitled
thereto, for any reason whatever except as provided in Section 8(d) above.
13. Successors.
(a) The Company will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to the Executive, expressly,
absolutely and unconditionally to 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 or assignment had taken place. Any failure of
the Company to obtain such agreement prior to the effectiveness of any such
succession or assignment shall be a material breach of this Agreement and shall
entitle the Executive to terminate the Executive's
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employment for Good Reason. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor or assign to its business
and/or assets as aforesaid which executes and delivers the agreement provided
for in this Section 13(a) or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries.
All amounts payable to the Executive hereunder shall be paid, in the event of
the Executive's death, to the Executive's estate, heirs and representatives.
Except as provided in this Section 13, no party may assign this Agreement or any
rights, interests, or obligations hereunder without the prior written approval
of the other party. Subject to the preceding sentence, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement shall not be
terminated by the voluntary or involuntary dissolution of the Company.
14. Enforcement. The provisions of this Agreement shall be
regarded as divisible, and if any such provisions or any part hereof are
declared invalid or unenforceable by a court of competent jurisdiction, the
validity and enforceability of the remainder of such provisions or parts hereof
and the applicability thereof shall not be affected thereby.
15. Amendment. This Agreement may not be amended or modified at
any time except by a written instrument executed by the Company and the
Executive.
16. Withholding. The Company shall be entitled to withhold from
amounts to be paid to the Executive hereunder any federal, state or local
withholding or other taxes, or charge which
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it is from time to time required to withhold. The Company shall be entitled to
rely on an opinion of counsel if any question as to the amount or requirement of
any such withholding shall arise.
17. Governing law
This Agreement and the rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of Maine.
18. Arbitration.
Any dispute arising out of this Agreement shall be determined by
arbitration in the State of Maine under the rules of the American Arbitration
Association then in effect and judgment upon any award pursuant to such
arbitration may be enforced in any court having jurisdiction thereof.
19. Notice.
Notices given pursuant to this Agreement shall be in writing and shall
be deemed given when received and, if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only postage
prepaid, to the Company at:
Banknorth Group, Inc.
P.O. Box 9540
Two Portland Square
Portland, ME 04112
Attn: Clerk
or if to the Executive, at the address contained in the records of the Company,
or to such other address as the party to be notified shall have given to the
other.
20. No Waiver.
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No waiver by any party at any time of any breach by another party of,
or compliance with, any condition or provision of this Agreement to be performed
by another party shall be deemed a waiver of similar or dissimilar provisions or
conditions at any time.
21. Headings. The headings herein contained are for reference only
and shall not affect the meaning or interpretation of any provision of this
Agreement.
22. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supercedes any prior severance agreements between the Executive and the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
THE COMPANY BANKNORTH GROUP, INC.
By:
- ------------------------- ------------------------------------
Witness Carol L. Mitchell
Executive Vice President, General Counsel,
Secretary and Clerk
- -------------------------- ---------------------------------------
Witness William J. Ryan
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