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EXHIBIT 10(y)(iv)
EMPLOYMENT AGREEMENT
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AGREEMENT made as of February 14, 1995 and effective January 1, 1995
between United States Trust Company ("USTC"), a banking and trust company
having its principal place of business in Boston, Massachusetts, and joined in
as to certain matters by UST Corp. ("UST"), a Massachusetts corporation also
having its principal place of business in Boston, Massachusetts and the parent
of USTC; and Lucia B. Santini (the "Employee").
BACKGROUND
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The Employee and the other principals of the Asset Management Division
of USTC ("AM") listed on Schedule I hereto and such other principals as may be
added pursuant to the Unifying Agreement (as hereinafter defined) (all such
employees, while they remain principals, being referred to herein from time to
time as "Employee/Principals") are concerned that previous UST and USTC
practices have not allowed for enough spending to generate growth in AM's
business, or for fully competitive compensation for its principals; want
assurances of continued freedom to manage the AM business; want to participate
in an incentive compensation program which reflects the value created in this
business; and want to make it attractive to any potential acquirer of UST, USTC
or AM to (i) protect existing relationships with AM employees and clients, (ii)
avoid re-writing existing client contracts, and (iii) further AM as a separate
business conducted under the name "United States Trust Company".
UST and USTC want to stabilize and increase the profitability of AM;
pay competitive compensation; provide incentive compensation reflecting the
growth in the business of AM; and (in the event of a "Triggering Event" as
hereinafter defined) offer an opportunity to a prospective purchaser to retain
the services of Employee and the other Employee/Principals and thereby receive
a continuing stream of profits from AM.
UST and USTC recognize the importance of Employee to their business
and to USTC's ability to retain AM client relationships, and desire that USTC
employ Employee as an officer and principal of AM for the period of employment
and upon and subject to the terms herein provided.
UST and USTC wish to be assured that Employee will not compete with
AM's business during the period of employment, and in certain circumstances and
as set forth below will not for a period thereafter solicit any Past, Present,
or Potential Clients (as hereinafter defined) of AM and will not by such
solicitation damage USTC's and AM's goodwill among its clients and the general
public.
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Employee desires to be employed by USTC and serve as an
Employee/Principal of AM and to participate in the incentive compensation
program contemplated by this agreement, and to refrain from competing with USTC
or AM or soliciting AM's clients for the periods and upon and subject to the
terms herein provided.
Employee has been employed by USTC and AM for approximately 21 years;
has while so employed contributed to the acquisition and retention of AM's
clients, and will continue to seek to acquire and retain clients and to
generate goodwill for AM in the future as an officer and employee of USTC and
an Employee/Principal of AM for the periods and on the terms contemplated
hereby.
When the terms "AM," "AM's business," or the "AM Division" are used
herein, such terms specifically exclude the non- investment advisory business
of USTC such as (1) the business of UST Capital Corp. (venture capital) and (2)
the management of USTC's internal securities portfolio. Such terms, however,
include the investment return on allocated, but unexpended, portions of AM's
Share of Revenues as reflected on Schedule V. The investment return on
allocated, but unexpended, portions of AM's share of revenues shall be measured
at the end of each calendar quarter by multiplying the average of the month end
balances during such quarter by the published thirteen week U.S. Treasury Bill
Rate at the end of such calendar quarter and such interest income shall be
added to "AM's Share of Revenues". All current Employee/Principals are listed
on Schedule I.
Employee, the other Employee/Principals, UST and USTC have entered
into an agreement of even date herewith (the "Unifying Agreement") which
describes generally their agreements and certain procedures they have agreed to
follow among themselves. This Employment Agreement is executed pursuant to and
in accordance with the terms of the Unifying Agreement. Certain capitalized
terms used but not defined herein shall have the meanings given them in the
Unifying Agreement.
AGREEMENTS
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In consideration of the premises, the mutual covenants and the
agreements hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
SECTION 1. ORIGINAL TERM OF EMPLOYMENT; COMPENSATION. USTC
agrees to employ Employee for a period of two and one-half (2 1/2) years
beginning on the date hereof (the "Original Term") as an officer of USTC and an
Employee/Principal of AM; and Employee hereby accepts such employment. USTC
will pay Employee for Employee's services during the Original Term, and any
Renewal Term (as hereinafter provided) and any Phase II Term, the Annual Base
Salary set forth on Schedule I hereto, and such additional annual incentive
payments as shall be determined by the
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Employee/Principals consistent with the Revenue Sharing Provision (Section 10
hereof), and subject to such payroll and withholding deductions as are
required by law. Consistent with the Revenue Sharing Provision, the Employee's
total compensation will be reviewed at least annually in accordance with the
Unifying Agreement, having in mind that such compensation be fair and
reasonable in light of Employee's position and the duties to be performed by
the Employee and the Employee's efforts to enhance the business of AM.
SECTION 2. RENEWAL TERMS. If no "Triggering Event" has occurred
and this Agreement has not been terminated by either party (all as hereinafter
provided) prior to the end of the Original Term, then the Original Term shall
be automatically extended for successive six month renewal terms (each referred
to herein as a "Renewal Term", or collectively as "Renewal Terms") until such
Triggering Event or termination has occurred, or until the Employee shall have
provided at least six months advance written notice to UST and USTC of election
not to enter a Renewal Term.
SECTION 3. NOTICE OF TERMINATION OF ORIGINAL TERM BY EMPLOYEE.
On or before the last day of the second year of the Original Term and assuming
that this Agreement has not been earlier terminated or entered upon the Phase
II Term (all as hereinafter provided), the Employee may give written notice to
UST and USTC of termination, whereupon all the provisions of this Agreement
will terminate (except as noted below in this Section 3) on the last day of the
Original Term. If there has been a material breach of this Agreement by
Employee at any time during the Original Term or any Renewal Term, and the
arbitration under Section 18 hereof has confirmed that a material breach has
been committed by the Employee and such breach is uncured during the applicable
grace period, then the Employee will be subject in full to all of the
restrictions of Section 12, 13 and 14 hereof for the remainder of the
applicable term plus 90 days. However, should the Employee terminate this
Agreement without a material breach at the end of the Original Term or at the
end of any Renewal Term, Sections 12, 13 and 14 of this Agreement shall not
apply. Notwithstanding the foregoing, should the Employee terminate this
Agreement as described in either of the immediately preceding two sentences,
UST and USTC will retain all of their respective common law rights against the
Employee with respect to confidentiality, protection of customer lists, trade
secrets, non-competition and similar matters.
SECTION 4. PHASE II TERM. If a Triggering Event occurs during
the Original or a Renewal Term, any such term shall automatically terminate and
the Phase II Term shall commence as of the earlier of the date of signing of a
definitive merger or acquisition agreement or the date of occurrence of such
Triggering Event. The Phase II Term shall be for a period of three years from
the Closing Date under such definitive merger, consolidation or acquisition
agreement, or the date of the agreement related to any other such Triggering
Event, but in no event for longer than four years from such signing date, and
shall be terminable in the same manner as the Original
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Term under Section 3 above (the "Phase II Term"). The "Closing Date" shall mean
the date on which the merger or consolidation becomes effective, the
acquisition is consummated or the change in corporate ownership related to any
other such Triggering Event takes effect. If the revenues of the AM business
decline precipitously and the Formula Payment described in Section 11 below
would be less than $3 Million, then the Employee may decline to accept the
Formula Payment and the Phase II Term. If the AM revenues likewise decline,
and the Formula Payment described in Section 11 below would be less than $5
Million, the Employee/Principal may elect to reduce the Phase II Term by one
year.
SECTION 5. TERMINATION BY EMPLOYEE FOR BREACH OF "INDEPENDENCE
ASSURANCES." In the event of the material breach by UST or USTC (or their
respective successors) of any one or more of the "Independence Assurances"
listed below, the Employee/Principals, acting in accordance with the Unifying
Agreement, shall have the right (subject to compliance with Section 18 hereof)
but not the obligation, upon 30 days prior written notice to UST and USTC, to
terminate this Agreement.
(a) "Independence Assurances" shall consist of UST's and USTC's
non-interference (unless requested by the Employee/Principals of AM acting in
accordance with the Unifying Agreement) in the following:
(i) The Employee/Principals control of AM's investment
philosophy and investment approach, business strategy, conduct of investment
analysis, portfolio selection, marketing, client retention and acceptance of
new clients, and client service;
(ii) Authority of the Employee/Principals to hire and fire AM
personnel within the scope of UST's "Policies" (as hereinafter defined) and
applicable Federal and Massachusetts laws, subject to UST's right to approve
any person chosen by the Employee/Principals as the Senior Principal of AM,
which person shall also serve initially (i) as the Chief Executive Officer of
USTC, and (ii) on USTC Board of Directors. UST, as sole shareholder of USTC,
subject to the terms of the Unifying Agreement and this Agreement, will at all
times retain the right to select a Chief Executive Officer of USTC who is not
an employee of AM. USTC will not, however, select the Senior Principal;
(iii) The Employee/Principals' authority to set AM client
fees based on their judgment concerning the market for services rendered by AM;
(iv) The Employee/Principals' authority to establish AM's
operating expense budget and compensation practices, limited by "AM's Share of
Revenues" as provided in Section 10 (See Schedule V for example); and limited
further with respect to total cumulative cash incentive compensation for
Employee/Principals in the aggregate accrued in each of the years ending
December 31, 1994 and December 31, 1995, to $1.3 million plus incentive
compensation accrued in 1993 (it being understood
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THAT the Formula Payment is not to be regarded as cash incentive compensation
for any purposes);
(v) The Employee/Principals' authority to add and delete
Employee/Principals of AM in accordance with the Unifying Agreement; and
(vi) The recognition by UST and USTC that AM, in pursuit
of its "socially-sensitive" investment objectives, may take some public
positions which may not represent the views of UST or USTC management. The
Employee, however, recognizes that Employee's actions will remain subject to
the provisions of the Code of Ethics, Employment Policies, and certain other
key corporate policies of UST and USTC listed on and attached to Schedule II
hereto ("Policies"), as revised from time to time on a company-wide basis in
the ordinary course of UST's and USTC's business (which revisions shall be made
available to Employee at UST's principal office in Boston); and applicable
Federal and Massachusetts laws, regulations, policies, orders or understandings
in use by or applicable to UST and USTC.
(b) In the event that any of the "Independence Assurances" have
been materially breached and not cured pursuant to Section 18, the Employee
may act either individually or in concert with any other Employee/Principal or
Employee/Principals or other employees so as to constitute a "person" as
defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), in electing to terminate their Employment Agreements, e.g.
they may collectively decide to give five (5) days notice and leave USTC to
form a new business which may directly compete with AM's business and Sections
12, 13 and 14 of this Agreement will not apply.
SECTION 5A. OVERSIGHT FUNCTION OF USTC'S BOARD OF DIRECTORS.
USTC's Board of Directors (a majority of whom shall not be Employee/Principals)
shall continue to exercise its oversight function of the business activities of
AM. In performing such oversight function, USTC's Board the Directors will
assure itself that AM's business and operations are being conducted in a manner
consistent with applicable law and regulations, and such Board will be expected
to meet its fiduciary responsibilities to USTC and its depositors, and to UST,
in all respects, including without limitation, the prevention of corporate
waste of assets and taking steps to see that AM's business is operated with
their respective best interests in mind. If in performing such oversight
function, the Board causes UST or USTC to breach an Independence Assurance and
such breach is (a) confirmed by the arbitrator under Section 18 or not
contested by UST or USTC and (b) not cured within the applicable grace period,
the Employee may terminate this Agreement and the Employee will leave with the
rights described in Section 5(b) of this Agreement.
SECTION 6. MATTERS NOT CONSTITUTING "INDEPENDENCE ASSURANCES".
The following shall specifically not be considered as "Independence Assurances"
but shall nevertheless govern the relationship by and among UST, USTC and AM:
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(a) The location of AM's business for a period of three years from
January 1, 1995 on two floors at 40 Court Street, Boston, MA. The Employee and
the other Employee/Principals shall cause AM to give twelve months written
notice of termination of such occupancy, if they so elect, no earlier than
December 31, 1996. "Fair Rental" shall be charged or allocated by UST or USTC
for AM's premises, and UST or USTC shall give AM "high priority" with respect
to remodeling and upgrading of space.
(b) Matters covered in a Memorandum dated September 14, 1994 on
"Capital Expenditures/Intercompany Charges" which is attached as Schedule VI
hereto.
(c) The taking of reasonable steps by the Employee and the other
Employee/Principals to cause that appropriate levels of profit from AM's
business to be reinvested in the business (infrastructure, systems, facilities,
product development, compensation to staff members who are not Principals,
additional staff) during the Total Term (as hereinafter defined). For the year
1995, the amount considered "appropriate" would be the investment of
approximately five percent (5%) of "Base Annual Revenues of AM" as defined in
Section 10.
(d) The amortization of AM capital expenditures over a period in
accordance with UST's and USTC's then current policy to the extent it is
consistent with GAAP. In connection with the foregoing capital expenditures,
at the reasonable request of AM funding will be provided by UST and/or USTC
which will charge AM a fair interest rate for the cost of capital employed.
(See also Schedule VI).
(e) The providing of such information as is reasonably necessary
for UST to manage its affairs and responsibilities subject to client
confidentiality, including but not limited to information necessary to comply
with generally accepted accounting principles ("GAAP") in the preparation of
financial statements, budgets and profit plans, and for shareholder
communications, and responses to regulatory requests.
(f) The actions of all Employee Principals shall remain subject,
without limitation, to the terms of UST's Code of Ethics, the Payment Approval
Policy and the other Policies set forth in Schedule II hereto.
SECTION 7. TERMINATION OF EMPLOYMENT BY USTC.
(a) Employee's employment may be terminated by USTC (by majority
vote of its Board of Directors) in the following circumstances:
At any time after due notice and reasonable opportunity to
correct such conduct, (i) in the event of Employee's material
breach of any of the terms of this Employment Agreement; (ii)
in the event of Employee
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causing a material breach of any of the other
Employee/Principals' duties to UST and USTC under Section 10
(Revenue Sharing Provision ); (iii) in the event of Employee's
willful misconduct in the performance of the Employee's duties
hereunder including, without limitation, but subject to
Sections 5 and 6 hereof, Employee's willful refusal to carry
out any "proper direction" by USTC's Board of Directors with
respect to the services to be rendered by Employee hereunder
or the manner of rendering such services; or (iv) in the event
of Employee's conviction of a crime involving moral turpitude.
The term "proper direction" as used in clause (iii) above, may
not be used in connection with an instruction, direction or
order which would cause UST or USTC to violate an
"Independence Assurance".
(b) In the event of Employee's death during the term of
employment, unless otherwise determined by the Employee/Principals acting
pursuant to the Unifying Agreement, USTC's and UST's obligations to pay further
compensation hereunder shall cease as of the date of death, except that any
amounts due under Section 11 hereof or otherwise owed to Employee under welfare
or benefit plans or for deferred compensation and any amounts heretofore
accrued under Sections 3.1 and 3.2 of the Unifying Agreement, shall be paid
when due to the Employee's estate or named beneficiary.
SECTION 8. OFFICE AND DUTIES. During the Original Term, any
Renewal Term, and the Phase II Term, if any, (hereinafter the "Total Term"),
Employee shall hold such positions and perform such duties relating to AM's
business and operations as are described on Schedule I hereto, and as may
otherwise from time to time be assigned to Employee by the Employee/Principals
consistent with all of the terms of this Agreement. During the Total Term and
while employed by USTC, Employee shall devote (except as noted on Schedule I)
substantially all of Employee's business time to the Employee's duties
hereunder and shall, to the best of Employee's ability, perform such duties in
a manner which will faithfully and diligently further the business and
interests of AM.
At any time while employed by USTC, Employee shall not directly or
indirectly solicit the business of any Past, Present, or Potential Clients (as
hereinafter defined) except on behalf and for the benefit of AM, or pursue any
other business activity, including, without limitation, serving as an officer,
director, employee, or adviser to any business entity other than AM, without
UST's and USTC's prior written consent; provided, however, that Employee may
without such consent, render without compensation investment advisory services
to immediate members of Employee's family, which shall include the Employee and
any trust or account which is comprised entirely of assets held for the benefit
of such Employee and/or immediate members of Employee's family, and may be
involved in such additional activities without such consent as are listed on
the Schedule I hereto. Employee agrees to travel to whatever
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extent is reasonably necessary in the conduct of AM's business. Except when
engaged in such travel, Employee's place of employment shall be in the greater
Boston area of Massachusetts unless otherwise agreed to by Employee, UST and
USTC, and the Employee/Principals acting in accordance with the Unifying
Agreement.
The term "Past Client" shall mean at any particular time any person or
entity who within three years prior to such time had been but at such time is
not an advisee, investment advisory customer, or client of AM.
The term "Present Client" shall mean at any particular time any person
or entity who is at such time an advisee, investment advisory customer, or
client of AM.
The term "Potential Client" shall mean at any particular time any
person or entity to whom AM, through any of the Employee/Principals or other of
its employees, has within three years prior to such time offered (by means of a
personal meeting, telephone call, or a letter or a written proposal
specifically directed to the particular person or entity) to serve as
investment adviser but who is not at such time an advisee or investment
advisory customer or client of AM. The preceding sentence is meant to exclude
form letters and blanket mailings.
The terms "Client" or "Client List" when used herein shall mean all
Past, Present, and Potential Clients as heretofore defined. The term "Client"
when used in this Employment Agreement with respect to wrap accounts, shall
mean the wrap sponsors and the brokers employed by such wrap sponsors but not
the underlying wrap account holders.
SECTION 9. BENEFITS. Employee shall participate, to the extent
Employee is eligible and in a manner and to an extent that is fair and
appropriate in light of the position and duties granted to Employee hereunder,
in all pension, profit-sharing, group insurance, or other fringe benefit plans
(other than UST corporate stock compensation plans) which UST or USTC may
hereafter in their absolute discretion make available generally to employees of
AM, but neither UST nor USTC will be required to establish any such program or
plan. Employee shall be entitled to such vacations and to reimbursement of
such expenses as UST's or USTC's policies allow to all employees having
comparable responsibilities and duties. So long as such additional benefits
are payable out of or accrue to "AM's Share of Revenues" as hereinafter
defined, the Employee/Principals may provide additional executive benefits to
themselves in addition to those provided by UST, provided that no such benefit
be qualified under Section 401 of the Internal Revenue Code or non-qualified
(under Section 401 of the Internal Revenue Code) pursuant to the terms of a
plan or arrangement which operates in a manner that is substantially similar or
mirrors a qualified plan, and provided further that the award of any such
benefits does not increase the cost to UST of providing benefits to UST
employees who are not employees of AM.
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SECTION 10. REVENUE SHARING PROVISION. The purpose of this
Revenue Sharing Provision is to provide UST with an acceptable stream of income
and to permit AM to retain a specified percentage of its revenues for use by
Employee/Principals, including the Employee, in their discretion in paying
expenses of operation, including compensation. It is intended to allow the
Employee and the other Employee/Principals to be compensated for enhancing and
growing AM's revenues in a substantial manner and to make operating decisions
freely within the limits of "AM's Share of Revenues," as such term is defined
below. See Schedule V for examples of Revenue Sharing calculations.
(a) ALLOCATION OF REVENUES. "Base Annual Revenues of AM" in 1994
and all subsequent years for purposes of this Revenue Sharing Provision shall
be AM's actual 1994 Revenues less $750,000, such total amount to be
appropriately modified to reflect changes in the United States Bureau of Labor
Statistics Cost of Living Index for the Boston Metropolitan Statistical Area or
any designated successor index for 1995 and all subsequent years. The term
"Revenues" shall mean AM's revenues calculated on an accrual basis in
accordance with GAAP, (excluding shared revenues paid to investment or other
firms or professionals and generated from AM clients), consistent with USTC's
usual practice.
During the pro-rated six month period commencing July 1, 1994 and
ending December 31, 1994, and for each calendar year and for portions
thereof on a pro-rated basis thereafter, AM shall retain sixty percent
(60%) ("Base AM Retention"), of AM's pro-rated actual Revenues and AM
shall make available to USTC for distribution to UST forty percent
(40%) ("Base UST Amount"), subject to adjustment as set forth in this
Section 10(a).
In 1995 and for each calendar year and for portions thereof on a
pro-rated basis thereafter, for each dollar of AM's annual revenues
over Base Annual Revenues of AM, AM shall retain an additional $.40,
and an additional $.60 shall be allocated to UST, provided that in no
event shall UST's Share of Revenues exceed fifty percent (50%) of
actual Annual Revenues of AM.
In 1995 and for each calendar year and for portions thereof on a
pro-rated basis thereafter, for each dollar that actual Annual
Revenues of AM are less than Base Annual Revenues of AM, Base AM
Retention shall be reduced by $.40 and the Base UST Amount shall be
reduced by $.60, provided that in no event shall UST's Share of
Revenues be less than thirty percent (30%) of Annual Revenues of AM.
Amounts retained by AM as aforesaid are herein referred to as "AM's
Share of Revenues". Amounts allocated to UST as aforesaid are herein referred
to as "UST's Share of Revenues".
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(b) FLOOR INCENTIVE. In addition, during the Original Term of
this Agreement (thirty months), AM shall retain a "Floor Incentive" of $40,000
per month from "UST's Share of Revenues" ($1.2 million in the aggregate). The
"Floor Incentive" shall be accrued by USTC and paid pursuant to subsection
(d)(iv) hereof, and shall be excluded from the limitations of Section 5(a)(iv)
of this Agreement. In the event of a material breach by UST or USTC of this
Agreement during the Original Term (which breach is not cured during the
applicable grace period and is either confirmed by the arbitrator under Section
18 hereof or not contested by UST or USTC), the Employee/Principals (for
distribution in accordance with the Unifying Agreement) may elect to receive an
aggregate lump-sum payment determined by multiplying (x) the monthly "Floor
Incentive" by (y) the remaining months in the Original Term. If a "Triggering
Event" occurs during the period January 1, 1995 through June 30, 1998, the
aggregate Floor Incentive, net of tax, accrued during the four full calendar
quarters next preceding the date of the Triggering Event, shall not be deducted
from "AM's After Tax Revenues" for purposes of calculating the Section 11
Formula Payment. Moreover, if a Triggering Event occurred before all Floor
Incentives have been paid, UST or USTC's successor shall assume responsibility
to make the remaining Floor Incentive payments.
(c) SPECIAL PROVISIONS. It is understood and agreed that:
(i) The balance of "Base AM Retention" for the period
July 1, 1994 through December 31, 1994 shall be paid
by UST or USTC to AM no later than February 15, 1995.
(ii) All amounts due to Robert B. Zevin pursuant to his
agreement dated September 30, 1994 with USTC shall be
considered as expenses to come out of "AM's Share of
Revenues" in each year in accordance with the
Unifying Agreement.
(iii) The application of this Section may make it
unattractive for AM to enter a business activity with
a profit margin of less then 40%. Accordingly, the
parties have agreed to negotiate separate "side
letters" with respect to revenue sharing on any new,
lower-margin business opportunities identified in the
future by AM and regarded as worthy of pursuit by UST
and/or USTC.
(iv) The parties hereto further understand and acknowledge
that the term "Revenues" as used herein is intended
to cover revenues of AM as they now exist and as they
may grow or contract internally, and not revenues
from the acquisition by UST or USTC of another
investment advisory firm concerning which the parties
hereto agree to negotiate in good faith as to revenue
sharing.
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(v) The investment return on allocated, but unexpended,
portions of AM's Share of Revenues shall be measured
at the end of each calendar quarter by multiplying
the average of the month end balances during such
quarter by the published thirteen week U.S. Treasury
Bill Rate at the end of such calendar quarter.This
interest income shall be added to "AM's Share of
Revenues".
(d) Transfer of Revenues to UST; Retention of Revenues by
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USTC;Compensation of Employee/Principals.
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(i) The Employee/Principals and AM shall use AM's Share
of Revenues to pay and provide for AM's business
expenses and expenditures including, without
limitation, investment in AM's business and new
products (see Section 6(d) above) and salaries of its
employees, except that any federal, state or local
income tax to which USTC is subject shall be the
responsibility of UST and shall not be treated as a
business expense of AM.
(ii) The Employee/Principals shall incur no expenses or
obligations on behalf of AM which exceed USTC's
ability to pay or provide for them when due out of
AM's Share of Revenues. The Employee/Principals
shall not incur obligations or make binding
commitments on behalf of USTC or UST not related to
AM's business and requiring expenditures by USTC in
excess of $50,000, or make representations to third
parties that they have the authority to do so.
However, the Employee/Principals may represent and
advertise that AM is a division of USTC and an
affiliate of UST, and other than as limited above in
this Section 10 (d)(ii), may incur obligations or
make binding commitments on behalf of USTC in the
ordinary course of business.
(iii) The Employee/Principals may (subject to Policies and
applicable laws and regulations) pay to AM's
employees, including the Employee and the other
Employee/Principals, at times and in amounts and
proportions determined in accordance with the
Unifying Agreement, the balance of AM's Share of
Revenues remaining after the payment of all of the
amounts required under subsection (d)(i) hereof and
subject to Section 5(a)(iv).
(iv) The Employee's Revenue Sharing compensation out of
"AM's Share of Revenues" shall be allocated in
accordance with the terms of the Unifying Agreement.
The Employee/Principals have provided to UST and USTC
in the Unifying Agreement their procedures for
determining changes, if any, in the allocation of
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Revenues among the Employee/Principals. If an
Employee/Principal chooses to leave USTC's employ
after bypassing this change determination mechanism
or refusing to abide by its results, the
Employee/Principal shall be deemed to have committed
a material breach of this Employment Agreement.
(v) The Employee/Principals and AM shall make available
to UST, UST's Share of Revenues upon reasonable
request by UST and action by USTC's Board of
Directors. The Employee/Principals shall not spend
or incur obligations to spend any part of UST's Share
of Revenues.
(e) ADMINISTRATION. The parties hereto and the other
Employee/Principals agree to meet and consult to endeavor in good faith to
agree on appropriate procedures, in addition to Policies and applicable laws
and regulations, for administering the provisions of this Section 10.
The Employee/Principals shall retain control over all expenditures of
AM, subject to the power of USTC's Board of Directors to exercise its rights
under Section 5A, and subject to this Revenue Sharing Provision, and
recognizing that AM is a division of USTC.
(f) TERM AND STATUS AS PARTIES. This Revenue Sharing Provision
shall continue in effect until terminated by agreement of UST, USTC, and the
Employee/Principals acting in accordance with the Unifying Agreement. If the
employment of Employee by USTC ceases other than as a result of a material
breach by UST or USTC of this Employment Agreement, such Employee shall
thereupon automatically cease to be a party to this Revenue Sharing Provision
and to have any rights or obligations under this Section, and shall cease to be
an Employee/Principal for the purposes of this Provision. Nothing in this
Employment Agreement shall be construed to grant to the Employee any right to
be employed by USTC beyond the terms of this Employment Agreement.
SECTION 11. FORMULA PAYMENT. If Employee is still employed by
USTC at the time of a "Triggering Event" (as hereinafter defined), the Employee
shall receive Employee's share of a formula payment (the "Formula Payment") as
follows:
(a) Unless otherwise agreed by the Employee/Principals acting in
accordance with the Unifying Agreement, the Employee's share of the Formula
Payment shall be the percentage set forth after the Employee's name on Schedule
III hereto;
(b) The "Formula Payment" shall be 3.33 times "AM's After Tax
Revenues" (as hereinafter defined and meaning generally UST's Share of Revenues
minus taxes);
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(c) "AM's After Tax Revenues" shall be the portion of AM's
after-tax Revenues contributed, accruing or allocated to UST for the four full
calendar quarters next preceding the date of the Triggering Event; determined
in accordance with GAAP consistently applied in such periods. For purposes of
this Subsection, there shall be assumed a combined federal and state tax rate
of 38%, such rate to be appropriately adjusted to reflect changes in applicable
federal and state corporate tax rates. An example of this calculation is set
forth on Schedule V.
(d) The Formula Payment shall be adjusted in accordance with
Schedule IV hereto for gain or loss of AM clients between the signing of a
definitive merger, consolidation or acquisition agreement or an agreement
related to another Triggering Event and the Closing Date related to any such
Triggering Event.
(e)
(i) At the Closing Date of a Triggering Event, three Key
Employees shall be identified as follows. For every
person who has been an Employee/Principal at any time
during the previous 15 months there shall be
calculated a Weighted Average Share equal to the sum
of (a) the share of the Formula Payment such person
was entitled to receive from time-to-time during the
preceding 15 months in accordance with Schedule III
and subsequent changes thereto by the
Employee/Principals acting in accordance with the
Unifying Agreement times (b) the number of days such
person was entitled to each such share. The three
persons among those who are or have been
Employee/Principals on the Closing Date of the
Triggering Event or during the previous 15 months who
have the three highest Weighted Average Shares shall
be deemed the "Key Employees".
(ii) If only one of the three Key Employees is no longer
in the employ of USTC as of the Closing Date of such
Triggering Event, then all of that Key Employee's
Weighted Average Share of the Formula Payment
(expressed by X%) shall be placed in escrow in the
manner contemplated by Section 11(f). To determine
the distribution of each of the three escrowed
installments use the following formula. Revenues of
AM (as defined in Section 10(a)) for the last full
calendar year prior to a Triggering Event should then
be determined (the "Measuring Year"). Such Revenues
of AM for the Measuring Year multiplied by a decimal
representing 100% - X% equals the "Minimum Revenues".
If during the next full calendar year following the
Measuring Year, Revenues of AM are equal to or less
than Minimum Revenues none of the one-third of the
escrowed amount for such year will be paid to the
remaining Employee/Principals in accordance with this
Section and all of it will be retained by UST's or
USTC's successor. If Revenues of AM for
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that calendar year exceed Minimum Revenues, (i) take
the U.S. Dollar amount of such excess above the
Minimum Revenues and divide it by the Revenues of AM
for the Measuring Year minus the Minimum Revenues,
(ii) then multiply the resulting fraction by
one-third of the full escrowed amount, (iii) the
product of the foregoing formula should be delivered
to the remaining Employee/Principals as a group for
distribution in accordance with the Unifying
Agreement and the remainder of that installment
should be retained by UST or UST's successor.
Similar calculations should be made for the second
and third installments, but in each case using the
same Minimum Revenues.
(iii) If two or more of the Key Employees are no longer in
the employ of USTC as of the Closing Date of such
Triggering Event, then 100% of the Formula Payment
shall be placed in escrow in the manner contemplated
by Section 11(f). To determine the distribution of
each of the three escrowed installments use the
following formula. If Revenues of AM for the last
full calendar year prior to the distribution date of
the applicable escrow installment equal or exceed
Revenues of AM for the Measuring Year, all of that
escrowed installment should be distributed to the
remaining Employee/Principals as a group for
distribution in accordance with the Unifying
Agreement and none should be retained by UST or
USTC's successor. If Revenues of AM for the last
full calendar year prior to the distribution date of
the applicable escrow installment are less than
Revenues of AM for the Measuring Year, divide the
U.S. Dollar amount of Revenues of AM for such last
full calendar year by the U.S. Dollar amount of
Revenues of AM for the Measuring Year and multiply
the resulting fraction by one-third of the full
escrowed amount. The product of the foregoing
calculation should be delivered to the remaining
Employee/Principals as a group for distribution in
accordance with the Unifying Agreement and the
remainder should be retained by UST's or USTC's
successor.
(f) Seventy percent (70%) of the Employee's share of the Formula
Payment shall be paid in cash within twenty (20) days of the Closing Date of
the Triggering Event. The remaining thirty percent (30%) shall be placed in
escrow with an escrow agent acceptable to both UST and Employee/Principals and
paid to the Employee or the Employee's estate as provided in Section 7(b) in
installments of one third of the escrowed amount at the end of years one, two
and three (which may not be calendar years) after the Closing Date of the
Triggering Event plus interest, at the interest rates on the date of the
Closing Date of the Triggering Event of one, two and three year Treasury
securities, provided that at the time of each such installment payment, the
Employee has not been terminated with cause or for a material breach or has not
voluntarily ceased to be employed by AM.
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(g) A "Triggering Event" shall be deemed to have occurred when:
(i) there occurs the signing of a definitive agreement of
merger or consolidation of UST or USTC with any other
corporation, other than a merger or consolidation
which would result in the voting securities of UST or
USTC outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by
being converted into voting securities of the
surviving entity) more than eighty percent (80%) of
the combined voting power of the voting securities of
UST or USTC, or such surviving entity outstanding
immediately after such merger or consolidation;
provided, however, that a merger or consolidation
effected to implement a recapitalization,
reorganization or restructuring of UST or USTC (or
similar transaction) in which no "person" (as defined
in (g)(iii) below) acquires more than fifty percent
(50%) of the combined voting power of UST's then
outstanding securities shall not constitute a
Triggering Event; or
(ii) there occurs a closing of a sale or other disposition
by UST of more than 50% of UST's, USTC's or AM's
business and assets; or
(iii) any "person", as such term used in Section 13(d) and
14(d) of the Exchange Act other than UST or USTC or
any of their respective subsidiaries or affiliates or
any trustee or other fiduciary holding securities
under an employee benefit plan of either of them or
any of their subsidiaries or affiliates, becomes a
beneficial owner (within the meaning of Rule 13d-3,
as amended, as promulgated under the Exchange Act),
directly or indirectly, of securities representing
50% percent or more of the combined voting power of
UST's or USTC's then outstanding securities.
If (i) more than 50% of UST's then outstanding common stock or assets
are acquired by a "person" whose consolidated assets prior to the Triggering
Event were less than $4 billion or (ii) UST's business assets and operations
are consolidated with those of another bank or bank holding company and the
resulting entity has consolidated assets of $5.5 billion or less, a Triggering
Event shall be deemed to have occurred, but the length of the Phase II term of
employment of the Employee shall be increased automatically by one additional
year.
(h) If UST agrees to be acquired by an entity with a public image
so starkly negative that AM's affiliation with that entity would be reasonably
likely, by itself, to cause a loss of more than 25% of AM's gross revenues in
one year (unless the parties
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mutually agree to the contrary), the Employee/Principals at their option acting
pursuant to the terms of the Unifying Agreement (and provided such right is
exercised within 30 days of the public announcement of such acquisition) will
be relieved of all of the Employee's obligations under the Phase II Term and no
Formula Payment will be made.
(i) The parties acknowledge that any such Formula Payment is
intended to compensate the Employee for: (i) the automatic extension of this
Agreement occurring by reason of a Triggering Event; (ii) the Phase II
Non-Competition covenants specified in Section 12; and (iii) the loss of
opportunity to make up for reduced rate of compensation which such Employee
earned with USTC for periods prior to the effective date of this Agreement.
SECTION 12. PHASE II NON-COMPETITION COVENANTS.
(a) During the longer of the Phase II Term (as defined in Section
4) if Phase II shall commence while Employee is employed by USTC hereunder or
while Employee is employed by USTC during or after such Phase II Term
hereunder, Employee shall not, except in the course of his employment with
USTC, directly or indirectly:
(i) Provide or offer or attempt to provide, whether as an
officer, director, employee, partner, stockholder,
consultant, adviser, subsidiary, affiliate,
independent contractor or otherwise, investment
advisory services to any person or entity;
(ii) Interfere with AM's relations with any person or
entity who at any time during such period was a
Client (which means Past, Present, and Potential
Client); or
(iii) Induce or attempt to induce directly or indirectly
any professional employee of AM to terminate his or
her employment or hire or attempt to hire, directly
or indirectly, any such person, other than by
discharge of such person as a part of Employee's
duties.
(b) Until one year following the end of the Phase II Term, if the
Phase II Term should commence while Employee is employed by USTC hereunder or
one year following the termination of Employee's employment with USTC during or
after such Phase II Term, Employee shall not, directly or indirectly:
(i) Provide or offer or attempt to provide, whether as an
officer, director, employee, partner, independent
contractor or otherwise, investment advisory services
to any person or entity who as of the date of the
termination or expiration of Employee's employment
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with USTC was or had been a Client (which means Past,
Present, and Potential Client);
(ii) Interfere with AM's relations with any person or
entity who as of the date of the termination or
expiration of Employee's employment with USTC was a
Client (which means Past, Present, and Potential
Client); or
(iii) Induce or attempt to induce directly or indirectly
any professional employee of AM to terminate his or
her employment or hire or attempt to hire, directly
or indirectly, any such person.
(c) Notwithstanding the provisions of subsections (a)(i) and
(b)(i), the Employee may render without compensation investment advisory
services to any immediate member of Employee's family, which shall include the
Employee and any trust or account which is comprised entirely of assets held
for the benefit of such Employee and/or immediate members of such Employee's
family, and may engage in such other activities as are listed on Schedule I
hereto.
(d) Employee and USTC agree that the periods of time and the
unlimited geographic area applicable to the covenants of this Section 12 are
reasonable, in view of the receipt and expected receipt of the Employee's share
of Revenue Sharing as provided in Section 10(c), and other compensation, and
the Formula Payment provided herein; the geographic scope and nature of the
business in which AM is engaged; Employee's knowledge of AM's business; and
Employee's relationships with AM's investment advisory clients. However, if
such period or such area should be adjudged unreasonable in any judicial
proceeding, then the period of time shall be reduced by such number of months
or such area shall be reduced by elimination of such portion of such area, or
both, as are deemed unreasonable, so that this covenant may be enforced in such
area and during such period of time as are adjudged to be reasonable.
SECTION 13. ALL BUSINESS TO BE THE PROPERTY OF USTC; ASSIGNMENT
OF INTELLECTUAL PROPERTY. During the Phase II Term if Phase II shall commence
while Employee is Employed by USTC hereunder and thereafter while Employee is
employed by AM and/or USTC:
(a) Employee agrees that any and all presently existing investment
advisory business of AM and all business developed by Employee or any other
employee of AM, including without limitation all investment advisory contracts,
fees, commissions, compensation records, Client Lists (as defined in Section
8), agreements, and any other incident of any business developed or sought by
AM or earned or carried on by Employee for AM, are and shall be the exclusive
property of USTC for its sole use, and (where applicable) shall be payable
directly to USTC.
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(b) Employee hereby grants to USTC (without any separate
remuneration or compensation other than that received by Employee from time to
time in the course of his or her employment) Employee's entire right, title,
and interest throughout the world in and to, all research, information, Client
Lists, and all other investment advisory, technical and research data made,
conceived, developed and/or acquired by Employee solely or jointly with others
during the period of Employee's employment by USTC, which relate to investment
advice as it was or is now rendered or as it may, from time to time, hereafter
be rendered or proposed to be rendered, but excluding such individual's ideas
and thought processes which are not embodied in written or machine readable
form (all such non-excluded items being referred to as "Intellectual
Property").
SECTION 14. CONFIDENTIALITY. Except in performance of services
for USTC, Employee shall not, either during the Phase II Term if Phase II shall
commence while the Employee is employed by USTC hereunder or thereafter while
employed by AM and/or USTC, use for Employee's own benefit or disclose to or
use for the benefit of any person outside USTC, any information not lawfully
available to the public concerning any Intellectual Property, including Client
Lists, whether Employee has such information in his or her memory or embodied
in writing or other tangible form. All such Intellectual Property and such
information concerning Intellectual Property, and all originals and copies of
any Intellectual Property, and any other written material relating to the
business of AM, shall be the sole property of USTC. During such Term or
thereafter, upon the termination of Employee's employment in any manner or for
any reason, Employee shall promptly surrender to USTC all originals and copies
of any Intellectual Property, and Employee shall not thereafter use any
Intellectual Property.
The foregoing notwithstanding, Employee will have no obligation to AM
or USTC with respect to the disclosure or use of any Intellectual Property or
information concerning Intellectual Property if:
(a) Such Intellectual Property or information is or becomes publicly
known or otherwise enters the public domain through no wrongful act of
Employee; or
(b) Such Intellectual Property or information is received from a
third party which has no obligation to UST or USTC to maintain it in
confidence.
Notwithstanding the references to Client Lists above, it shall not be
a violation of this Section or Section 13 hereof for Employee to communicate or
do business with any Past, Present or Potential Client in the course of
Employee's employment with AM and USTC, and any such conduct shall be limited,
if at all, solely by Section 12 hereof.
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SECTION 15. NOTICES. Any notice or other communication hereunder
shall be given as follows:
United States Trust Company
40 Court Street
Boston, MA 02108
Fax: (617) 726-7320
Attn: Neal F. Finnegan, Chairman, Executive
Committee
UST Corp.
40 Court Street
Boston, MA 02108
Fax: (617) 726-7320
Attn: Neal F. Finnegan, President & CEO
With copies to Eric R. Fischer, Executive Vice President and General
Counsel
Fax: (617) 726-7209
Employee:
Lucia B. Santini
1691 West Street
Wrentham, MA 02093
Fax: (if any)
with copy to Peter M. Rosenblum
Foley, Hoag & Eliot
1 Post Office Square
Boston, MA, 02109
Fax: (617) 832-7000
SECTION 16. ASSIGNABILITY. This Employment Agreement shall be
binding upon and inure to the benefit of UST, USTC, and to any person or firm
who may succeed to the business of UST, USTC, or AM. This Employment Agreement
shall not be assignable by Employee, but it shall inure to the benefit of
Employee's heirs, executors, administrators and legal representatives.
SECTION 17. ENTIRE AGREEMENT. This Employment Agreement and the
Unifying Agreement contain the entire agreement between USTC and Employee with
respect to the subject matter hereof, and supersede all prior oral and written
agreements between any of UST, USTC, AM and the Employee with respect to the
subject matter hereof, including without limitation any oral agreements
relating to compensation.
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SECTION 18. ARBITRATION. In the event the parties hereto
disagree as to whether a material breach has occurred of: (i) the "Independence
Assurances" under Section 5; (ii) USTC's right of termination of Employee's
employment under Section 7; (iii) this Agreement by USTC as described in
Section 19 (b); (iv) the revenue sharing provisions of Section 10; or (v) the
formula payment provisions of Section 11, such dispute shall be settled by
arbitration before a single arbitrator to be then named by UST and a majority
of the Employee/Principals acting in accordance with the Unifying Agreement, in
Boston, Massachusetts in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. If such arbitrator cannot serve, then a
successor shall be appointed in accordance with such Rules. If the arbitrator
finds that there has been a material breach (and such breach has not been cured
by UST or USTC within sixty (60) days of such finding or by Employee in
accordance with Section 7 hereof), then the remedies provided for in Section 19
shall become available, as appropriate.
SECTION 19. EQUITABLE RELIEF AND OTHER REMEDIES.
(a) Employee recognizes and agrees that UST's, USTC's or the
Employee/Principals' remedies at law for any breach of the provisions of
Sections 12, 13 and 14 hereof would be inadequate and that for breach of such
provisions UST, USTC and the Employee/Principals shall, in addition to such
other remedies as may be available to any of them at law or in equity or as
provided in this Employment Agreement, be entitled to injunctive relief and to
enforce their respective rights by an action for specific performance to the
extent permitted by law, and to the right of set-off against any amounts due to
the Employee by UST, USTC or AM. Should Employee engage in any activities
prohibited by this Employment Agreement, he or she agrees to pay over to USTC
or UST all compensation received in connection with such activities. Such
payment shall not impair any other rights or remedies of UST, USTC or AM or
affect the obligations or liabilities of Employee under this Employment
Agreement or applicable law.
(b) Any termination by USTC of Employee's employment which is not
authorized by Section 7 hereof shall constitute a material breach of this
Agreement. In the event of a material breach of this Agreement by UST or USTC
which is not cured pursuant to Section 18, in addition to any other rights or
remedies which the Employee may have, at law, in equity or otherwise, USTC
shall pay Employee the Employee's then current Annual Base Salary for a period
equal to the greater of (i) twelve months or (b) the balance of the then
current term of this Agreement. Any such payments shall not constitute part of
AM's Share of Revenues. Should such a material breach occur and not be so
cured, the Employee shall be free to compete, Sections 12, 13 and 14 shall not
apply and the Employee shall leave with the rights described in Section 5(b) of
this Agreement.
(c) Without limiting the generality of the foregoing, the parties
expressly agree
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that termination without cause of Employee's employment hereunder during the
Phase II Term by UST, USTC or any other person or entity will constitute a
material breach of this Agreement and, in addition to any other rights or
remedies which the Employee may have, at law, in equity or otherwise, shall
give Employee the right to salary continuation as set forth in Section 19(b)
hereof.
SECTION 20. WAIVERS AND FURTHER AGREEMENTS. Neither this
Employment Agreement nor any term or condition hereof, including without
limitation the terms and conditions of this Section 20, may be waived in whole
or in part as against UST, USTC, AM or Employee except by written instrument
executed by each of them, expressly stating that it is intended to operate as a
waiver of this Employment Agreement or the applicable term or condition hereof.
Each of the parties hereto agrees to execute all such further instruments and
documents and to take all such further action as the other party may reasonably
require in order to effectuate the terms and purposes of this Employment
Agreement as stated herein. Furthermore, no waiver may violate the terms of
the Unifying Agreement and any waiver shall require action of the
Employee/Principals in accordance with the Unifying Agreement authorizing such
waiver.
SECTION 21. AMENDMENTS. This Employment Agreement may not be
amended, nor shall any parties be added hereto, nor any change, modification,
consent, or discharge be effected except by written instrument executed by all
three of the Employee, USTC and UST. Furthermore, no amendment or modification
may violate the terms of the Unifying Agreement and any amendment or
modification shall require action of the Employee/Principals in accordance with
the Unifying Agreement authorizing such amendment or modification.
SECTION 22. SEVERABILITY. If any provision of this Employment
Agreement shall be held or deemed to be invalid, inoperative or unenforceable
in any jurisdiction or jurisdictions, because of conflicts with any
constitution, statute, rule or public policy or for any other reason, such
circumstance shall not have the effect of rendering the provision in question
unenforceable in any other jurisdiction or in any other case or circumstance or
of rendering any other provisions herein contained unenforceable to the extent
that such other provisions are not themselves actually in conflict with such
constitution, statute or rule of public policy, but this Employment Agreement
shall be reformed and construed in any such jurisdiction or case as if such
invalid, inoperative, or unenforceable provision had never been contained
herein and such provision reformed so that it would be enforceable to the
maximum extent permitted in such jurisdiction or in such case.
SECTION 23. NO CONFLICTING OBLIGATIONS. Employee represents and
warrants to USTC and UST that Employee has no other interest or obligation
which is inconsistent or in conflict with this Employment Agreement or which
would prevent, limit, or impair, in any way, Employee's performance of any of
the covenants or duties
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hereinabove set forth.
SECTION 24. PARTIES. It is understood and agreed that UST joins
in this Employment Agreement only as to such matters where its name appears
herein. It is further understood and agreed that no person shall participate
in the benefits conferred on Employee/Principals by the terms of this and other
similar Employment Agreements unless such person has become a party to a
similar Employment Agreement or is described in Section 16.
SECTION 25. GOVERNING LAW. This Employment Agreement shall be
governed by and construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts which apply to contracts executed and performed
solely in Massachusetts. UST, USTC and the Employee hereby consent to the
jurisdiction of any state or federal court located within Suffolk County,
Massachusetts, and assent that service of process may be made by registered
mail to the parties' respective addresses as provided in Section 15 hereof and
shall be effective in the same manner as notices are effective under such
Section 15.
SECTION 26. ACTION OF THE EMPLOYEE/PRINCIPALS. Whenever the
Consent of the Employee/Principals shall be described herein, action by the
Employee/Principals or their duly authorized representative shall be required
in accordance with the Unifying Agreement, and such action shall be sufficient
hereunder.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as a sealed instrument as of the date first above written.
EMPLOYEE: UNITED STATES TRUST COMPANY
/s/ Lucia B. Santini By: /s/ Neal F. Finnegan
-------------------- --------------------
Lucia B. Santini Title:
Joined in as to those matters where its name appears.
UST CORP.
By: /s/ Neal F. Finnegan
--------------------
Title:
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