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EXHIBIT 10(u)
EMPLOYMENT AGREEMENT
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This Agreement made and entered into as of the 11th day of July, l99O
by and between USTrust, a commercial bank organized under the laws of
Massachusetts which has its principal place of business in Cambridge,
Massachusetts ("UST") and Robert T McAlear, a resident of Milton, Massachusetts
(the "Employee")
WITNESSETH
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WHEREAS, UST is engaged in the business of providing a variety of
banking and financial services to individual, corporate and governmental
customers; and
WHEREAS, UST desires to engage the Employee and the Employee desires
to be engaged by UST, as a Vice-Chairman of UST and in such other capacities as
hereinafter set forth, on a full-time basis and, on the terms and conditions
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hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto do hereby agree as follows:
I. Employment:
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UST hereby employs the Employee as a Vice-Chairman of UST whose
activities will be focused upon the commercial lending activities, credit
monitoring, credit policymaking, and general administration of UST. In the
foregoing capacities the Employee will report to the Chief Executive Officer of
UST, who as of the date hereof, is Quinlan J. Sullivan, Jr. Subject to the
approval of Messrs. James V. Sidell and Quinlan J. Sullivan, Jr., the Employee
will be appointed Chief Lending Officer of UST on or about the date of the UST
Corp. Board of Directors meeting which follows the six month anniversary of the
Employee's commencement of employment and actual assumption oz his duties at
UST. The foregolng commencement date will not be later than August 31, 1990.
Employee may, at the discretion of the Board and/or the Chief Executive Officer
of UST Corp., be appointed, from time to time, to serve as a member of
committees which include executives of UST and its affiliates. The Employee
hereby agrees to accept such positions upon election or appointment. In
addition, if elected or appointed, the Employee may also serve as an officer or
Director of any other affiliate of UST, (even if such
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employment requires resignation from positions with UST) if such service is
deemed appropriate by the UST Corp. Board of Directors, and PROVIDED HOWEVER,
that in the case of a reassignment of duties no such reassignment shall require
the Employee, without his consent, to accept dutles which will diminish his
job status or change the substance of his duties from that of managing
commercial lending activities or require the Employee to move his office out of
the Greater Boston geographical area. All such activities and services shall be
rendered in a falthful, responsible and competent manner consistent with
standards that may reasonably be established and maintained by UST, and
consistent with banking industry standards.
II. Compensation:
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The Employee shall be paid at the rate of $200,000 per annum from
August 13, 1990 and during the balance of the term hereof; provided, however,
that should the pretax net earnings or earnings per share of UST Corp. decline
in any year from the prior year's level or stay flat, the Board of Directors
may, in its discretion, reduce such compensation in a manner substantially
proportional to the reductions incurred by other UST officers with similar
responsibilities. Increases, if any, over and above the annual base salary set
forth herein, or any bonuses or additional compensation shall be determined
annually by the Board of Directors of UST Corp. at the Board's sole discretion
after taking into consideration the Employee's performance and contribution as
well as the increases, if any, granted to other UST officers with similar
responsibility. In addition, the Employee shall receive an allowance of $673
per month which he shall use to defray the costs of the business use of an
automobile owned by the employee. Moreover, the employee shall receive
reimbursement for the parking expenses related to the foregoing automobile.
The Employee also shall be entitled to such fringe benefits, including paid
vacation time, as UST Corp. may provide to UST officers who bear similar levels
of responsibility. Moreover, the Employee will be granted by UST Corp.'s Board
of Directors, options under UST Corp.'s incentive stock option plan which will
enable the Employee to purchase up to 15,000 shares of UST Corp. common stock.
In the event the Employee shall be elected a Director of any of the UST Corp.
group of companies, he shall not receive any Directors' fees or Directors'
compensation for attendance at Directors' meetings nor as a
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retainer. UST will also pay the Employee's ordinary and usual charges,
including initiation and periodic fees, dues and assessments, for his
business use of a membership in a golf, tennis or swim club of the Employee's
choice, located in the Greater Boston geographical area.
III. Term:
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Unless terminated by the earlier death or "Disabil1ty" of the Employee
as defined ln Article V hereof, Employee is engaged for an initial period
commencing with a date in August 1990 selected by the Employee but which will
not be later than August 31, 1990 and ending on the 31st day of August 1993.
Unless terminated by either party by six months' prior written notice to the
other party this Employment Agreement will automatically be renewed after
August 31, 1993 for additional one year periods. Notwithstanding the foregoing,
in the event there shall be a "charnge-in-control" of UST Corp. (as such term
is defined on the date hereof in UST Corp.'s Incentive Stock Option Plan), this
Employment Agreement shall be automatically extended to the conclusion of a
period ending two years from the date of consummation of the
"change-in-control" but, in no event earlier than August 31, 1993. In addition,
UST shall have the right to terminate this Employment Agreement at any time for
cause, which shall mean, dishonesty, willful absenteeism, willful failure to
perform reasonable duties assigned to him hereunder, gross malfeasance, gross
misconduct or the Employee's conviction of a felony or his willful violation of
any provision of federal or state banking or securities law or willful failure
to perform his obligations under any other provision of this Employment
Agreement. Except in the case of dishonesty UST agrees to give written notice
of at least ten days as to the particulars which are asserted to be the basis
for termination and an opportunity extending not more than ten days from
receipt by the employee of such notice to cure such event in a manner which
reasonably assures UST that such event will not recur. In the event the
Employee's employment with UST and all of its affiliated companies is
terminated by UST without cause during the period from September 1 i993 to
August 31 1995 the Employee will be entitled to receive a one time severance
payment of $25,000 in lieu of unvested retirement plan benefits.
IV. Scope of Service:
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Employee shall devote his full time and effort to the faithful
performance of his duties hereunder and shall be engaged in no outside
business of employment during the course of his employment hereunder. It is
agreed that the provisions of this Article IV will not be deemed to be
violated by the holding of
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directorships or related positions in charitable educatioral or
not-for-profit organizations which do not involve continuous or substantial
time commitments nor by passive persona1 real estate or other personal
investment activities which the Employee is able to monitor outside of his
normal working hours.
II Disability:
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In the event the Employee shall be unable to perform his regular and
customary duties by reason of physical or mental ailment or other disability
for a period of six consecutive months or less (a "Disability") he shall be
entitled to receive regular compensation durlng that period. In the event said
illness or other disability shall continue for a period longer than six
consecutive months, UST Corp.'s and UST's obligations under this Employment
Agreement shall terminate and his compensation thereafter shall be limited to
the amounts received from insurance payments, if any, provided by UST.
VI. Non-competition:
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In the event the Employee either (i) shall, without cause, leave his
employment at least 90 days prior to the end of the term hereof, or (ii) shall
be discharged for cause during the term hereof, the Employee agrees that he
will not enter into the employment of any other financial institution or entity
in Eastern Massachusetts or Southern Connecticut for a period equal to one
year. The foregoing restriction will not be applicable in the event that the
Employee is terminated as a result of disability as enumerated in Article V
above. The Employee further agrees that for a period of two years following the
termination of his employment for whatever reason hereunder, he will not
directly or indirectly, for his own account or for the account of others, (i)
solicit the business of persons whom he knows to be customers of UST, UST Corp.
or any of their affiliates with regard to the provision of any type of
financial service, or (ii) after notice from UST Corp. or UST that any person
or persons is or are a customer, commence or continue the solicitation of such
business from such person or (iii) solicit or hire personnel of UST Corp. or
any of its subsidiaries for the benefit of any entity controlled by the
Employee or by which the Employee is employed or from which the Employee
receives any form of fee or compensation.
VII. Confidential Information:
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The Employee recognizes and acknowledges that there may be made
available to him in the course of his employment hereunder confidential
information of or relating to UST and its affiliates, including, without
limitation, client and customer lists, acquisition, expansion, and other
strategic plans (collectively the "Confidential Information"). The Employee
hereby acknowledges that the Confidential Information, as it may exist from
time to time, is a valuable, special and unique asset of the business of UST,
UST Corp. and their affiliates. UST hereby acknowledges that the Employee may,
in the performance of his duties obtain information of a general nature
concerning UST and its affiliates, which could be obtained by any person having
an interest in UST and its affiliates, and which general information is not
deemed included within the meaning of Confidential Information. The Employee
shall not, during or after the term of his employment hereunder, make any use
of Confidential Information or disclose any Confidential Information to any
person, firm, corporation, association or other entity for any reason or
purpose whatsoever, other than in connection with the normal performance of his
duties hereunder. UST or any of its affiliates shall be entitled to obtain
injunctive relief, restraining the Employee from disclosing or using any
Confidential Information in violation of this Article VII, and to recover any
and all costs and expenses incurred in enforcing this Employment Agreement, in
addition to any other relief provided by applicable law. The Employee
acknowledges that the nature of the business of UST and the value of the
Confidential Information render inadequate any remedy at law which may be
obtained by UST or any of its affiliates for a breach by the Employee of this
Articie VII and the Employee therefore hereby agrees that UST or any of its
affiliates may seek such equitable remedies.
VIII. Announcements:
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Neither UST nor the Employee shall issue any press releases
concerning, or otherwise describe or characterize in writing this Employment
Agreement, its performance or termination, without the approval of the other
party, which approval shall not be unreasonably withheld.
IX. Notices:
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All notices required under this Employment Agreement shall be
sufficient if made by certified or registered mail, return receipt requested,
provided that any party may change such address by providing notice thereof:
If to the Employee:
Robert T. McAlear
4 Augusta Road
Milton, MA 02186
with a copy to:
Jay L. Fialkow, Esq.
100 Federal Street Boston, MA 02110
If to UST Corp.:
Attention: James V. Sidell, President
40 Court Street
Boston, MA 02108
with a copy to:
Eric R. Fischer, Esq. at the same address.
If to USTrust:
Attention: Quinlan J. Sullivan, Jr.
Chairman of the Board
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141 Portland Street
Cambridge, MA 02139
with a copy to Eric R. Fischer, Esq. at the same address.
X. Amendments and Waivers:
This Employment Agreement represents the exclusive statement of the
entire agreement between the parties concerning the subject matter hereof and
may not be amended, modified or revoked in whole or in part except by written
agreement of the parties.
XI. Governing Law:
This Employment Agreement shall be governed, construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts.
XII. Severability:
In the event that any part of this Employment Agreement shall be held
to be illegal or null and void by any court of competent jurisdiction, such
determination shall not affect the enforceability, validity or binding nature
of the remaining parts of this Employment Agreement and they shall remain in
full force and effect.
XIII. Binding Nature:
This Employment Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs (in the case of the
Employee) legal representatives and successors.
XIV. Non-Assignment:
Neither Employee nor UST may assign any of his or its
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rights or duties hereunder witnout the prior written consent of the other
party.
XV. No Conflicting Agreement:
The Employee hereby represents and warrants to UST and UST Corp. that
he is under no contract, agreement or obligation which (i) prohibits him from
entering into this Employment Agreement, (ii) conflicts with the terms of this
Employment Agreement or (iii) prevents him, in any way, from performing the
duties contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed in duplicate originals as of the date first written
above.
USTRUST
By:/s/ Quinlan J. Sullivan, Jr.
Quinlan J. Sullivn, Jr.
/s/ Robert T. McAlear
Robert T. McAlear (Employee)