1
EXHIBIT 10(i)(i)
SECOND AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made by and between UST Corp., a Massachusetts
corporation, ("UST") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Employee") as of the 1st day of
January, 1999 (the "Effective Date"), amending in part and restating that
certain First Amended and Restated Employment Agreement between the parties
dated as of the 21st day of November, 1995, as amended by the agreement between
the parties dated as of the 2nd day of January, 1997 (collectively, the "First
Amended Agreement"), which in turn amended and restated the agreement between
the parties dated as of the 20th day of April, 1993, as amended on July 13, 1993
and February 15, 1994 (collectively, the "Original Agreement").
WHEREAS, UST considers the establishment and maintenance of a sound and
vital management to be essential to the protection and enhancement of the best
interests of UST and its shareholders;
WHEREAS, on the date hereof, the Employee is President, Chief Executive
Officer ("CEO") and a member of the Board of Directors of UST (the "UST Board")
and has developed an intimate and thorough knowledge of UST's business methods
and operations; and
WHEREAS, the retention of the Employee's services for and on behalf of UST
is material to the preservation and enhancement of the value of UST's business;
and
WHEREAS, UST wishes to retain the Employee's services, and the Employee
wishes to continue in the employment of UST, on the terms and conditions
contained herein;
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual promises, terms, provisions and conditions contained in this Agreement,
the parties agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions contained in this
Agreement, UST agrees to continue the employment of the Employee, and the
Employee agrees to continue in the service of UST.
2. TERM. Subject to earlier termination as provided hereafter, the Employee's
employment hereunder shall be for a term of three (3) years, commencing on the
Effective Date, which term may be extended or renewed only by a written
agreement signed by the Employee and a duly authorized representative of UST.
Notwithstanding the foregoing, in
1
2
2
the event that this Agreement is in effect on the date of consummation of a
Change of Control, as defined in Section 5.g.ii below, this Agreement shall
automatically be extended on said date such that the remaining term of the
Agreement shall then be two (2) years, but this Agreement shall be renewable
thereafter only by a written agreement signed by the Employee and a duly
authorized representative of UST. The term of this Agreement, as from time to
time renewed or extended in accordance with this Section 2, is hereafter
referred to as "the term hereof" or "the term of this Agreement."
3. PERFORMANCE.
a. During the term hereof, the Employee shall hold the position of
President and CEO of UST, subject to the direction and control of the UST Board.
The Employee shall perform the duties and assume the responsibilities of such
positions and such other appropriate duties and responsibilities as may
reasonably be assigned from time to time by the UST Board or its designee. UST
shall propose to the shareholders of UST at each appropriate Annual Meeting of
such shareholders during the term hereof the reelection of the Employee as a
member of the UST Board, provided that the Employee is otherwise eligible for
such election. In addition, and without further compensation, the Employee shall
serve as a director and/or officer of one or more of the Affiliates and as a
member of committees of the UST Board and the boards of directors of the
Affiliates, if so elected or appointed from time to time.
b. During employment, the Employee shall devote his full business time and
best efforts, judgment, skill and knowledge exclusively to the advancement of
the interests of UST and the Affiliates and to the discharge of his duties and
responsibilities for them and shall perform all such duties and responsibilities
in good faith and in a manner consistent with banking industry standards. While
employed by UST, the Employee shall not be engaged in any other business
activity, except as approved by the UST Board or its designee in writing. It is
agreed, however, that the provisions of this Section 3.b shall not be violated
by the Employee's holding of directorships or related positions in charitable,
educational or not-for-profit organizations which do not involve continuous or
substantial time commitments or by passive personal investment activities,
provided that such positions and activities are not in conflict, and do not
otherwise interfere, with the Employee's duties and responsibilities to UST and
the Affiliates.
4. COMPENSATION. As compensation for all services performed for UST and the
Affiliates during the term of this Agreement:
a. BASE SALARY. During the term hereof, UST shall pay the Employee a base
salary at an annual rate of not less than Six Hundred Thousand Dollars
($600,000),
3
3
which amount shall be subject to increase from time to time at the discretion of
the UST Board or its designee. The base salary, as adjusted from time to time in
accordance with this Section 4, is hereafter referred to as the "Base Salary."
b. SHORT TERM INCENTIVE COMPENSATION. The Employee shall be eligible to be
considered for short term incentive compensation with an annual target of not
less than one hundred percent (100%) of the Base Salary for calendar year 1999
and for each full calendar year thereafter during the term hereof. The
determination of whether bonus compensation will be granted and, if so, the
amount of any such bonus shall be determined by the UST Board in its discretion,
based on its assessment of the Employee's performance during the applicable
calendar year and taking into consideration the Employee's total compensation
(including but not limited to the value of the Restricted Stock, as hereafter
defined, granted him) in comparison with that of other chief executive officers
in businesses comparable to UST. The Employee shall not be eligible to
participate in any other bonus plan, program or arrangement of UST during the
term hereof unless expressly so authorized by the UST Board.
c. STOCK OPTIONS AND RESTRICTED STOCK.
i. All stock options granted to the Employee under the Original
Agreement and the First Amended Agreement have vested as of the Effective Date.
In addition, on the first business day following the Effective Date (i.e., on
January 4, 1999), UST shall grant to the Employee a non-qualified stock option
to purchase 360,000 shares of UST's Common Stock, which option shall be fully
vested on the date of grant and shall be and remain exercisable for a period of
five years from the date of grant, subject to the terms of UST's Stock
Compensation Plan as amended by UST from time to time (the "Plan") in the event
that the Employee's employment terminates prior to the expiration of the five
year exercise period and the option has not been exercised at the time of such
termination. The exercise price of all shares under said non-qualified stock
option shall be the fair market value on the date of grant. Except as otherwise
expressly provided herein, the option shall be governed by the terms of the
Plan. The Employee shall not otherwise be entitled to be granted stock options
during the period ending December 31, 2001. Any stock options granted the
Employee thereafter shall be at the discretion of the Compensation Committee of
the UST Board.
ii. Pursuant to the Original Agreement, the Employee has been
granted shares of UST Restricted Common Stock ("Restricted Stock") under the
Plan from which the restrictions have lapsed. Pursuant to the First Amended
Agreement, the Employee has been granted additional shares of Restricted Stock
under the Plan, from certain of which the restrictions have lapsed prior to the
Effective Date and from the
4
4
remainder of which the restrictions shall lapse on January 4, 1999. On January
4, 1999, UST shall grant the Employee an additional 10,000 shares of Restricted
Stock under the Plan, from approximately one third of which shares the
restrictions shall lapse during the term hereof on each of the date of grant and
the first and second anniversaries of the date of grant. On each of January 4,
2000, and January 4, 2001, during the term hereof, UST shall grant the Employee
an additional 10,000 shares of Restricted Stock under the Plan, from which
shares the restrictions shall lapse as determined in the discretion of the UST
Board or the Compensation Committee thereof. Any additional shares of Restricted
Stock granted the Employee shall be at the discretion of the Compensation
Committee of the UST Board.
d. EMPLOYEE BENEFIT PLANS. During the term hereof, the Employee shall be
entitled to participate in any and all employee benefit plans from time to time
in effect for employees of UST generally, excluding only plans providing
payments and/or other benefits in the event of termination of employment. Such
participation shall be subject to the terms of the applicable plan documents,
generally applicable UST policies and the discretion of the UST Board or any
administrative or other committee provided for in or contemplated by such plan.
e. UST EXECUTIVE SERP. Notwithstanding anything to the contrary contained
in the UST Corp. Senior Executive Plan (the "SERP"), for purposes of determining
the Employee's Target Benefit, as that term is defined in Article III of the
SERP, the Employee's Credited Service shall be deemed to be as follows:
Age at Termination
of Employment Years of Credited Service
62 9
63 11
64 13
65 15
Notwithstanding the preceding schedule, however, in the event of a Change of
Control and subsequent termination of employment prior to the Employee
attaining age 63, Paragraph 1 of Section 10.07 of the SERP shall govern in
determining Credited Service and assumed age.
UST undertakes to dedicate cash to a trust that will fund the payment of SERP
obligations to the Employee.
f. EXECUTIVE PERQUISITES. The Employee shall receive an allowance of not
5
5
less than Seven Hundred and Ninety Dollars ($790) per month which he shall use
to defray the cost of the business use of an automobile owned or leased by the
Employee. The Employee's annual dues and reasonable business expenses related to
UST's business at the Bay Club and the Union Club shall be reimbursed by UST.
Unless otherwise provided in this Agreement, the Employee shall be entitled to
participate in all programs and perquisites provided to executives of UST
generally, except to the extent such programs and perquisites are duplicative of
benefits provided to the Employee hereunder.
5. TERMINATION OF EMPLOYMENT. Notwithstanding the provisions of Section 2 above,
the Employee's employment under this Agreement shall terminate under the
following circumstances and, in that event, UST shall have only such obligations
to the Employee as are specified below under the applicable termination
provision of this Section 5:
a. UPON DEATH. In the event of the Employee's death during the term
hereof, the Employee's employment hereunder shall immediately and automatically
terminate. In such event, UST shall pay to the Employee's designated beneficiary
or, if no beneficiary has been designated by the Employee, to the Employee's
estate, Base Salary earned but unpaid, and vacation time accrued but unused,
through the date of death and any short-term incentive compensation awarded but
unpaid on the date of death.
b. AS A RESULT OF DISABILITY. In the event that the Employee becomes
disabled during the term hereof and, as a result, is unable to perform
substantially all of his duties for UST for more than one hundred and eighty
(180) days during any period of three hundred and sixty-five (365) days, UST may
terminate the Employee's employment without further obligation upon notice to
the Employee. In the event of such disability, the Employee will continue to
receive the Base Salary and benefits in accordance with Section 4 hereof until
the earlier of (i) the date the Employee becomes eligible for disability income
under UST's long-term disability or workers' compensation insurance plan or (ii)
the date his employment terminates.
c. BY UST FOR CAUSE. UST may terminate the Employee's employment for Cause
at any time upon notice to the Employee setting forth in reasonable detail the
nature of such Cause. The following shall constitute Cause for termination: (i)
the Employee's willful refusal to perform, or gross malfeasance in the
performance of, his duties or responsibilities on behalf of UST and the
Affiliates; (ii) the Employee's fraud, embezzlement or other material dishonesty
with respect to UST or any of the Affiliates; (iii) the Employee's gross
misconduct or (iv) the Employee's conviction of, or plea of no contest to, a
felony; provided, however, that, in the event of termination under clause (i) or
(iii) hereof, UST will give the Employee notice, in reasonable detail, of the
basis for termination and an opportunity of not more than (10) ten business days
to cure in a manner
6
6
which reasonably assures UST that such event will not recur. In the event of
termination under this Section 5.c, UST shall have no further obligation to the
Employee, other than for Base Salary earned but unpaid, and vacation time
accrued but unused, through the date of termination and any short-term incentive
compensation awarded but unpaid on the date of termination. Employee's
participation in UST's employee benefit plans shall end as of the date of
termination, but termination shall not result in the loss of any benefits that
have vested under any such plan on or before the date of termination. Stock
options and Restricted Stock shall be governed by the terms of the Plan.
d. BY UST OTHER THAN FOR CAUSE. UST may terminate the Employee's
employment other than for Cause upon notice to the Employee under this
subsection d or under subsection g below, whichever is applicable. In the event
of such termination prior to, or more than two years following, a Change of
Control and provided that the Employee executes the release of claims attached
hereto and marked "Appendix A" (the "Employee Release") within twenty-one (21)
days of his receipt of notice of termination of employment and does not timely
revoke the Employee Release, UST shall pay the Employee Base Salary earned but
unpaid, and vacation time accrued but unused, through the date of termination
and any short-term incentive compensation awarded but unpaid on the date of
termination and, in addition, UST
i. shall pay the Employee severance pay in an amount equal to
twenty-four (24) months' Base Salary at the rate in effect on the date of
termination of the Employee's employment, which the Employee may elect to
receive (A) in a single lump sum, payable within thirty (30) days
following the effective date of the Employee Release or (B) as salary
continuation payable at UST's regular payroll periods and in accordance
with its regular payroll practices commencing on the next regular payday
immediately following the effective date of the Employee Release, but
retroactive to the date of termination;
ii. shall pay the Employee an amount equal to two times the
short-term incentive compensation which the Employee received for the last
full calendar year immediately preceding the date of termination of his
employment, payable within thirty (30) days following the effective date
of the Employee Release;
iii. shall cause to be vested all unvested stock options to purchase
UST Common Stock granted to the Employee and not yet exercised, expired,
surrendered or canceled and shall cause all restrictions to lapse on all
Restricted Stock held by the Employee; and
7
7
iv. at the Employee's election, (A) shall continue to pay, for
twenty-four (24) months following the date of termination of the
Employee's employment or, if earlier, until the date the Employee is
covered under another employer's health plan that is comparable to that of
UST (the "Post-Employment Health Coverage Period"), that share of the
premium cost of the Employee's participation and that of his eligible
dependents in UST's group health plan as it pays for active employees of
UST and their eligible dependents generally OR (B) shall pay the Employee
a single lump sum payment equal to the amount that UST would have expended
if participation had been elected and continued for twenty-four (24)
months following the date of termination of the Employee's employment,
which lump sum shall be payable within thirty (30) days following the
effective date of the Employee Release, and the Employee and his eligible
dependents may exercise any rights they have under Sections 601-607 of
ERISA and Section 4980B of the Internal Revenue Code (collectively
referred to as "COBRA") to continue participation in the group health plan
at their cost, effective as of the date the Employee's employment
terminates. Should the Employee elect option (A) above, the period of any
continued health coverage to which the Employee and his eligible
dependents may be entitled under COBRA as a result of the Employee's
termination of employment will commence at the end of the above-defined
Post-Employment Health Coverage Period. Notwithstanding anything to the
contrary contained herein, the Employee may elect option (A) directly
above only if the Employee elects to receive payment under Section 5.d.i
in the form of salary continuation.
e. BY THE EMPLOYEE FOR GOOD REASON. The Employee may terminate employment
hereunder for Good Reason upon notice to UST setting forth in reasonable detail
the nature of such Good Reason. The following shall constitute Good Reason for
termination by the Employee: (i) failure of UST to continue the Employee in his
position as President and CEO of UST; (ii) a change adverse to the Employee in
the Employee's primary reporting relationship; (iii) material diminution in the
nature or scope of the Employee's responsibilities, duties or authority; (iv)
material failure of UST to provide the Employee compensation and benefits in
accordance with the terms of Section 4 hereof; or (v) a permanent transfer of
the Employee to a work site more than twenty-five (25) miles distant from his
work site on the Effective Date. In the event of termination in accordance with
this Section 5.e, UST shall provide the Employee Base Salary, short-term
incentive compensation, vesting of stock options, lapse of restrictions on
Restricted Stock and health plan benefits in accordance with Section 5.d hereof,
provided that the Employee executes
8
8
the Employee Release within twenty-one (21) days of his notice of termination of
employment and provided further that the Employee does not timely revoke the
Employee Release.
f. BY THE EMPLOYEE OTHER THAN FOR GOOD REASON. The Employee may resign
employment other than for Good Reason at any time upon sixty (60) days' notice
to UST. In the event of such termination, UST shall have no further obligation
to the Employee, other than for Base Salary earned but unpaid, and vacation
time accrued but unused, through the date of termination and any short-term
incentive compensation awarded but unpaid on the date of termination.
g. UPON A CHANGE OF CONTROL.
i. If, upon a Change of Control (as defined in subsection g.ii
below), the Employee elects to terminate this Agreement by notice to UST or its
successor or if, upon a Change of Control or within two (2) years thereafter,
UST terminates the Employee's employment other than for Cause or the Employee
terminates his employment for Good Reason and if, within twenty-one (21) days of
the date the Employee or UST gives notice of termination of his employment, the
Employee executes the Employee Release and does not timely revoke it thereafter,
then, in lieu of any payment and benefits to which the Employee would otherwise
be entitled under Section 5.d or 5.e hereof, UST shall pay the Employee Base
Salary earned but unpaid, and vacation time accrued but unused, through the date
of termination and any short-term incentive compensation awarded but unpaid on
the date of termination and, in addition, UST shall provide the Employee the
following:
(1) UST shall pay the Employee an amount equal to thirty-six
(36) months' Base Salary at the rate in effect on the date of termination
of the Employee's employment, which the Employee may elect to receive (A)
in a single lump sum, payable within thirty (30) days following the
effective date of the Employee Release or (B) as salary continuation
payable at UST's regular payroll periods and in accordance with its
regular payroll practices commencing on the next regular payday following
the effective date of the Employee Release, but retroactive to the date of
termination.
(2) UST shall pay the Employee an amount equal to three times
the short-term incentive compensation which the Employee received for the
last full calendar year immediately preceding the date of termination of
his employment, payable within thirty (30) days following the effective
date of the Employee Release.
9
9
(3) At the Employee's election, UST (A) shall continue to pay,
for the period of thirty-six months following termination of the
Employee's employment or, if earlier, until the date the Employee is
covered under another employer's health plan that is comparable to that of
UST (the "Change of Control Post-Employment Health Coverage Period"), that
share of the premium cost of the Employee's participation and that of his
eligible dependents in UST's group health plan as it pays for active
employees of UST and their eligible dependents generally OR (B) shall pay
the Employee a single lump sum payment equal to the amount that UST would
have expended if participation had been elected and continued for a period
of thirty-six (36) months, which lump sum shall be payable within thirty
(30) days following the effective date of the Employee Release, and the
Employee and his eligible dependents may exercise their rights under COBRA
to continue participation in the group health plan at their cost effective
as of the date his employment terminates. Should the Employee elect option
(A) above, the period of any continued health coverage to which the
Employee and his eligible dependents may be entitled under COBRA as a
result of the Employee's termination of employment will commence at the
end of the above-defined Change of Control Post-Employment Health Coverage
Period. Notwithstanding anything to the contrary contained herein, the
Employee may only elect option (A) directly above if the Employee elects
to receive payment under Section 5.g.i.(1) in the form of salary
continuation.
(4) Upon a Change of Control as defined in the Plan, the
vesting of any Restricted Stock or stock options to purchase UST Common
Stock granted to the Employee and not yet exercised, expired, surrendered
or canceled shall be in accordance with the Plan.
(5) If in connection with a Change of Control as defined in
the Plan any other employees who hold stock options under the Plan or
Restricted Stock will have their options or Restricted Stock or both
cashed out, whether under the Plan or otherwise, the Employee shall have
the right to have all or any of such options (including any non-qualified
options granted pursuant to Section 4.c hereof) or Restricted Stock or
both cashed out on the same basis and at the same time the options and
Restricted Stock of such other employees are cashed out.
ii. Except as otherwise provided with respect to subparagraphs
g.i.(4) and g.i.(5) directly above, a "Change of Control" shall be deemed to
have been consummated if hereafter
(A) any "person", as such term used in Section 13(d) and
10
10
14(d) of the Securities Exchange Act of 1934 as amended (the "Exchange
Act"), other than UST or any of the Affiliates or any trustee or other
fiduciary holding securities under an employee benefit plan of UST or any
of the 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 twenty-five percent (25%) or more
of the combined voting power of UST's then outstanding securities; or
(B) during any period of two consecutive years (not including
any period prior to the Effective Date), individuals who at the beginning
of such period constitute the Board, and any new director [ other than a
director designated by a person who has entered into an agreement with UST
to effect a transaction described in clause (A), (C) or (D) of this
Section 5.g.(ii) ] whose election by the Board or nomination for election
by UST's stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously
so approved, cease for any reason to constitute at least a majority
thereof; or
(C) there occurs a merger or consolidation of UST with any
other corporation, other than a merger or consolidation which would result
in the voting securities of UST 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 such surviving entity outstanding immediately after such merger or
consolidation; provided, however, that a merger or consolidation effected
to implement a recapitalization of UST (or similar transaction) in which
no "person" (as hereinabove defined) acquires more than twenty-five
percent (25%) of the combined voting power of UST's then outstanding
securities shall not constitute a Change of Control; or
(D) the stockholders of UST approve a plan of a complete
liquidation of UST; or
(E) there occurs a closing of a sale or other disposition by
UST of all or substantially all of its assets.
6. POST-AGREEMENT EMPLOYMENT. In the event the Employee remains in the employ of
UST or any of the Affiliates following termination of this Agreement, by the
expiration of the term or otherwise, then such employment shall be at will.
11
11
7. EFFECT OF TERMINATION. Provisions of this Agreement shall survive any
termination of this Agreement, by expiration of the term or otherwise, if so
provided herein or if necessary or desirable fully to accomplish the purposes of
such provision, including without limitation the obligations of the Employee
under Sections 8 and 9 hereof.
8. CONFIDENTIAL INFORMATION. The Employee acknowledges that UST continually
develops Confidential Information, that the Employee may develop Confidential
Information for UST and that the Employee may learn of Confidential Information
during the course of employment. The Employee agrees to comply with the policies
and procedures of UST for protecting Confidential Information and agrees that he
shall never disclose to any person, corporation or other entity, except as
required for the proper performance of his regular duties for UST, and shall
never use for his own benefit or that of another, any Confidential Information
obtained by the Employee incident to his employment or other association with
UST or any of the Affiliates. The Employee understands that this restriction
will continue to apply throughout his employment and after his employment
terminates, regardless of the reason for such termination; provided, however,
that the obligations contained in this Section 8 shall not apply to any
Confidential Information that becomes publicly known through no fault of the
Employee or that the Employee is otherwise required by law or regulation to
disclose.
9. NON-COMPETITION AND NON-SOLICITATION.
a. In the event the Employee leaves his employment with UST without Good
Reason during the term hereof or is discharged during the term hereof for one or
more of the causes set forth in Section 5.c hereof, the Employee agrees that he
shall not enter into the employment of any other financial institution or entity
in the Eastern Massachusetts banking market (as defined by the Federal Reserve
Bank of Boston) having assets in excess of $1 billion for the period of two (2)
years immediately following the date of termination of his employment.
b. The Employee further agrees that for a period of two (2) years
following termination of his employment pursuant to Section 5 c. or 5 f hereof,
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
or any of the Affiliates with regard to the provision of any type of financial
service provided by UST or any of the Affiliates or (ii) after notice from UST
that any one or more persons or entities are customers, commence or continue the
solicitation of such business from any such person or entity or (iii) solicit or
hire executive personnel of UST or any of the Affiliates for the benefit of any
entity controlled by the Employee or by which the Employee is employed or from
which the
12
12
Employee receives any form of fee or compensation.
10. REMEDIES. The Employee acknowledges that, if he were to breach any of the
provisions of Section 8 or Section 9 of this Agreement, the harm to UST would be
irreparable. The Employee therefore agrees that, in addition to any other
remedies available to it, UST shall be entitled to obtain preliminary and
permanent injunctive relief against any such breach, without having to post
bond.
11. TAXES. All payments made to the Employee under this Agreement shall be
reduced by any tax or other amount required to be withheld by UST under any
applicable withholding law.
12. REDUCTIONS. Notwithstanding anything to the contrary contained in this
Agreement, the payments and benefits to which the Employee would be entitled
pursuant to Section 5.g hereof or otherwise as a result of a Change of Control
shall be reduced to the maximum amount for which UST will not be limited in its
deduction pursuant to Section 280G of the Internal Revenue Code of 1986, as
amended, or any successor provision. Any such reduction shall be applied to the
amounts due to the Employee in such manner as the Employee may reasonably
specify within thirty (30) days following notice from UST of the need for such
reduction or, if the Employee fails to so specify timely, as determined by UST.
13. ASSIGNMENT. UST may assign its rights and obligations under this Agreement
without the consent of the Employee in the event that UST shall hereafter effect
a reorganization, consolidate with, or merge into, any other person, corporation
or other entity or transfer all or substantially all of its assets to any other
person, corporation or other entity. UST requires the personal services of the
Employee and he may not assign this Agreement. This Agreement shall inure to the
benefit of and be binding upon UST and the Employee and their respective
successors, executors, administrators, heirs and permitted assigns.
14. INDEMNIFICATION. UST shall, and UST shall use its best efforts to cause the
Affiliates to, indemnify the Employee to the maximum extent permitted by law and
regulation in connection with any liability, expense or damage which the
Employee incurs or to which the Employee is exposed as a result of the
Employee's employment and positions with UST and the Affiliates as contemplated
by this Agreement, provided that the Employee shall not be indemnified with
respect to any matter as to which he shall have been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interest of UST and the Affiliates. UST, on behalf of
itself and the Affiliates, hereby confirms that the occupancy of all offices and
positions which in
13
13
the future are or were occupied or held by the Employee have been so occupied or
held at the request of and for the benefit of UST and the Affiliates for
purposes of the Employee's entitlement to indemnification under applicable
provisions of the respective articles of organization and/or other similar
documents of UST and the Affiliates.
15. DEFINITIONS. Words or phrases which are initially capitalized or are within
quotation marks shall have the meanings provided in this Section 15 and as
provided elsewhere herein. For purposes of this Agreement, the following
definitions apply:
a. "Affiliates" means all persons and entities directly or indirectly
controlling, controlled by or under common control with UST, where control may
be by management authority or equity interest.
b. "Confidential Information" means any and all information of UST and the
Affiliates that is not generally known by others with whom any of them competes
or does business, or with whom any of them plans to compete or do business,
including without limitation any and all information concerning the identity and
special needs of the customers of UST and the Affiliates and the people and
organizations with whom UST or any of the Affiliates has business relationships.
Confidential Information also includes any information received by UST or any of
the Affiliates from others with any understanding, express or implied, that it
will not be disclosed.
16. MISCELLANEOUS. This Agreement sets forth the entire agreement between UST
and the Employee and, except as otherwise expressly provided herein, supersedes
all prior communications, agreements and understandings, whether written or
oral, with respect to the Employee's employment. The headings and captions
contained herein are for convenience of reference only and are not part of this
Agreement. This Agreement may not be modified or amended, and no breach of this
Agreement shall be deemed to be waived, unless agreed to in writing by the
Employee and UST. This is a Massachusetts contract and shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
[Remainder of page left blank intentionally.]
14
14
17. NOTICES. Any notices provided for in this Agreement shall be in writing and
shall be effective when delivered in person or deposited in the United States
mail, postage prepaid, and addressed to the Employee at his last known address
on the books of UST or, in the case of UST, at its main office, attention of the
Senior Vice President, Human Resources with a copy to the General Counsel of
UST.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by UST, by its duly authorized representative, and by the Employee,
as of the date first written above.
THE EMPLOYEE UST CORP.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------- -----------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman, Compensation
Committee and authorized signer
15
15
APPENDIX A
RELEASE OF CLAIMS
FOR AND IN CONSIDERATION OF the special payments to be made to me in
connection with my separation of employment, as set forth in the Second Amended
and Restated Executive Employment Agreement between UST Corp. and me dated as of
the 1st day of January, 1999 (the "Employment Agreement"), I, on my own behalf
and on behalf of my heirs, beneficiaries and representatives and all others
connected with me, hereby release and forever discharge UST Corp. ("UST"), the
Affiliates (as defined in the Employment Agreement), and all of their respective
officers, directors, employees, agents, representatives, successors and assigns
(all collectively, the "Released"), both individually and in their official
capacities, from any and all liabilities, claims, demands, actions and causes of
action of any type (all collectively "Claims") which I have had in the past, now
have, or might now have, through the date of my execution of this Release of
Claims, in any way resulting from, arising out of or connected with my
employment or its termination or pursuant to any federal, state or local
employment law, regulation or other requirement (including without limitation
Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act, as amended, the Americans with Disabilities Act, as amended, and
the Massachusetts fair employment practices act, as amended).
Excluded from the scope of this Release of Claims is (i) any claim arising
hereafter under the terms of the Employment Agreement or under the terms of any
of UST's employee qualified and non-qualified benefit plans (including without
limitation UST's employee pension plan, profit sharing plan or stock ownership
plan) and (ii) any right of indemnification or contribution pursuant to the
Articles of Organization or By-Laws of UST that I have or hereafter acquire if
any claim is asserted or proceedings are brought against me by any governmental
or regulatory agency, or by any customer, creditor, employee or shareholder of
UST or any other person or entity, or by any self-regulatory organization, stock
exchange or the like, related or allegedly related to my having been an officer
or employee of UST or to any of my activities as an officer or employee of UST.
By acceptance of or reliance on this Release of Claims, UST promises that
neither it nor any of the other Released who are Affiliates of UST will take any
action that is designed, specifically as to me or with respect to a class of
similarly situated former employees, to reduce or abrogate, or may reasonably be
expected to result in an abridgment or elimination of, any rights under any
policy or policies of directors and officers liability insurance affording
coverage to former officers and in effect from time to time, unless any such
abridgment or elimination of rights is also generally applicable to then-current
officers and employees of UST.
16
16
In signing this Release of Claims, I acknowledge that I have had at least
twenty-one (21) days from the date of my receipt of notice of termination of my
employment (or, if applicable, the date I gave such notice to UST) to consider
the terms of this Release of Claims, that I am encouraged by UST to seek the
advice of an attorney prior to signing this Release of Claims and that I am
signing this Release of Claims voluntarily and with a full understanding of its
terms. I understand that I may revoke this Release of Claims at any time within
seven (7) days of the date of my signing by written notice to UST, at its main
office, attention of the Senior Vice President, Human Resources, and that this
Release of Claims will take effect only upon the expiration of such seven-day
revocation period and only if I have not timely revoked it.
IN WITNESS WHEREOF, I have set my hand and seal on the date written below.
Signature: _________________________________
Date Signed: _______________________________