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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
May 10, 2000
(Date of earliest event reported)
Banknorth Group, Inc.
(Exact name of registrant as specified in its charter)
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Maine 0-16947 01-0437984
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
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P.O. Box 9540, One Portland Square, Portland, Maine 04112-9540
(Address of principal executive offices) (Zip Code)
(207) 761-8500
(Registrant's telephone number, including area code)
Peoples Heritage Financial Group, Inc.
(Former name, former address and former
fiscal year, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
As of the end of the day on May 10, 2000, following receipt of all
required regulatory and stockholder approvals, Peoples Heritage Financial Group,
Inc. (the "Company") completed the acquisition of Banknorth Group, Inc.
("Banknorth") pursuant to an Agreement and Plan of Merger, dated as of June 1,
1999 and amended as of December 22, 1999, between the Company and Banknorth (the
"Agreement"). The acquisition was effected by means of the merger of Banknorth
with and into the Company (the "Merger"), which changed its name to "Banknorth
Group, Inc." as a result of the Merger. Upon consummation of the Merger, each
share of common stock, $1.00 par value per share, of Banknorth outstanding
immediately prior thereto was converted into the right to receive 1.825 shares
of common stock, par value $0.01 per share, of the Company, including each
attached right issued pursuant to an Amended and Restated Rights Agreement,
dated as of September 12, 1989 and amended and restated as of July 27, 1999,
between the Company and the Rights Agent named therein, with cash in lieu of
fractional share interests.
For additional information about the Merger and related matters,
reference is made to the Registration Statement on Form S-4 (No. 333-95587)
filed by the Company with the Securities and Exchange Commission ("SEC") in
connection with the Merger on January 28, 2000. In addition, the information set
forth under Item 5 of this Current Report on Form 8-K is incorporated herein by
reference.
ITEM 5. OTHER EVENTS
Other matters related to the Company's acquisition of Banknorth are noted below.
Board of Directors. Upon consummation of the Merger, the following
persons became directors of the Company: Thomas J. Amidon, Susan C. Crampton,
George W. Dougan, Luther F. Hackett, Angelo P. Pizzagalli, who also became
chairman of the executive committee of the board of directors of the Company,
and Patrick E. Welch.
Executive Officers. Upon consummation of the Merger, the following
persons became executive officers of the Company: Richard J. Fitzpatrick,
Executive Vice President, Richard E. Johnson, Executive Vice President, and
Thomas J. Pruitt, Executive Vice President.
Subsidiary Mergers. The following mergers of banking subsidiaries of
the Company were scheduled to be consummated as of the indicated dates:
The merger of Bank of New Hampshire with and into Farmington National
Bank, which will change its name to "Bank of New Hampshire, NA" as a
result thereof (May 12, 2000);
The merger of Family Bank with and into First Massachusetts Bank, NA
(May 12, 2000);
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The merger of Glastonbury Bank & Trust Company with and into First
Massachusetts Bank, NA (May 12, 2000); and
The merger of Granite Savings Bank & Trust Company with and into The
Howard Bank, NA (on or about June 23, 2000).
Following consummation of the subsidiary bank mergers, the Company will
hold seven full-service banking subsidiaries which conduct business in Maine,
New Hampshire, Massachusetts, Vermont, Connecticut and upstate New York. In
addition, the Company holds The Stratevest Group, NA, a national trust company.
Subsidiary Conversions. Each of the following banking subsidiaries of
the Company is scheduled to convert from a Vermont-chartered banking subsidiary
to a national bank on or about June 23, 2000: First Vermont Bank and Franklin
Lamoille Bank. Following consummation of these conversions and the
above-described subsidiary bank mergers, all of the Company's banking
subsidiaries will be national banks, with the exception of Peoples Heritage
Bank, which is currently in the process of converting to a national bank.
Certain Dispositions. In order to satisfy certain commitments made by
the Company to the Federal Reserve Board in connection with the Merger, Bank of
New Hampshire and The Berlin City Bank (the "Purchaser") entered into a Purchase
and Assumption Agreement, dated as of March 20, 2000, pursuant to which Bank of
New Hampshire will sell to the Purchaser its branch office located in West
Ossipee, New Hampshire and the related assets and liabilities (the "Branch
Sale"). The deposits at the branch office amount to approximately $28 million.
The Branch Sale is subject to the receipt of all required regulatory approvals
and is expected to close in August 2000.
Certain Agreements. Upon consummation of the Merger, the Company
entered into a consulting and noncompetition agreement with William H. Chadwick.
For additional information, reference is made to Exhibit 10.1 to this Current
Report on Form 8-K. Upon their becoming executive officers of the Company, the
Company entered into a severance agreement with each of Messrs. Fitzpatrick,
Johnson and Pruitt. Pursuant to these agreements, which are substantially the
same as the severance agreements entered into by the Company and its other
executive officers, each of these officers would be entitled to receive
specified benefits in the event that his employment was terminated by the
Company other than for cause, disability, retirement or death following a
"change in control" of the Company, as defined, or the officer terminated his
employment under such circumstances for "good reason," as defined. In addition,
these severance agreements also generally provide that in the event that the
officer's employment is terminated by the Executive or the Company other than
for cause during the one-year period following consummation of the Merger, the
officer shall be entitled to receive the benefits under the change-in-control
agreement entered into by the officer and Banknorth prior to consummation of the
Merger, as well as remain subject to the noncompetition and confidentiality
provisions of such prior change-in-control agreement, even if there has not been
a change-in-control of the Company during such period. For additional
information, reference is made to Exhibits 10.2, 10.3 and Exhibit 10.4 to this
Current Report on Form 8-K.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) The following consolidated financial statements of Banknorth are
incorporated herein by reference to the Annual Report on Form 10-K for the year
ended December 31, 1999 filed by Banknorth with the SEC on March 30, 2000:
Consolidated Balance Sheets at December 31, 1999 and 1998
Consolidated Statements of Income for the years ended December
31, 1999, 1998 and 1997
Consolidated Statements of Changes in Shareholders' Equity for
the years ended December 31, 1999, 1998 and 1997
Consolidated Statements of Cash Flows for the years ended
December 31, 1999, 1998 and 1997
Notes to Consolidated Financial Statements
Report of KPMG LLP
(b) The following pro forma financial statements of the Company are
included as Exhibit 99.1 to this Current Report on Form 8-K pursuant to
Item 7(b) of Form 8-K:
Pro Forma Combined Consolidated Balance Sheet at December 31,
1999 and related notes
Pro Forma Combined Condensed Statements of Operations for the
years ended December 31, 1999, 1998 and 1997 and related notes
(c) The following exhibits are included with this Report:
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Exhibit 2.1 Agreement and Plan of Merger, dated as of June 1, 1999,
between the Company and Banknorth (1)
Exhibit 2.2 First Amendment, dated as of December 22, 1999, to the
Agreement and Plan of Merger between the Company and
Banknorth (2)
Exhibit 10.1 Consulting and Noncompetition Agreement, dated as of May
10, 2000, between the Company and William H. Chadwick
(3)
Exhibit 10.2 Severance Agreement, dated as of May 10, 2000, between the
Company and Richard J. Fitzpatrick
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Exhibit 10.3 Severance Agreement, dated as of May 10, 2000, between the
Company and Thomas J. Pruitt
Exhibit 10.4 Severance Agreement, dated as of May 10, 2000, between the
Company and Richard E. Johnson
Exhibit 23.1 Consent of KPMG LLP
Exhibit 99.1 Pro Forma Financial Information
Exhibit 99.2 Press Release
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(1) Incorporated by reference to the Current Report on Form 8-K filed
by the Company with the SEC on June 9, 1999, as well as to Annex I to the
Prospectus/Joint Proxy Statement contained in the Registration Statement on Form
S-4 (No 333-95587) filed by the Company with the SEC on January 28, 2000.
(2) Incorporated by reference to the Current Report on Form 8-K filed
by the Company with the SEC on December 23, 1999, as well as to Annex I to the
Prospectus/Joint Proxy Statement contained in the Registration Statement on Form
S-4 (No 333-95587) filed by the Company with the SEC on January 28, 2000.
(3) Incorporated by reference to the Registration Statement on Form S-4
(No. 333-95587) filed by the Company with the SEC on January 28, 2000.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BANKNORTH GROUP, INC.
By: /s/ Peter J. Verrill
Name: Peter J. Verrill
Title: Executive Vice President,
Chief Financial Officer and Treasurer
Date: May 11, 2000
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EXHIBIT 10.2
BANKNORTH GROUP, INC.
SEVERANCE AGREEMENT
This AGREEMENT, made and entered into as of the 10th day of May 2000,
by and among BANKNORTH GROUP, INC. (the "Company") and Richard J. Fitzpatrick
(the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Company in a key executive
capacity and possesses intimate knowledge of the business and affairs of the
Company; and
WHEREAS, the Company desires to ensure, insofar as possible, that it
will continue to have the benefit of the Executive's services and to protect its
confidential information and goodwill; and
WHEREAS, the Company recognizes that circumstances may arise in which a
change in the control of the Company occurs, thereby causing uncertainty of
employment without regard to the Executive's competence or past contributions;
and
WHEREAS, the Company and the Executive wish to provide reasonable
security to the Executive against changes in the Executive's relationship with
the Company in the event of such change in control;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
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1. Definitions
(a) Accrued Benefits means:
(i) All salary earned or accrued through the date the
Executive's employment is terminated;
(ii) reimbursement for any and all monies advanced in
connection with the Executive's employment for reasonable and necessary expenses
incurred by the Executive through the date the Executive's employment is
terminated;
(iii) any and all other compensation previously
earned and deferred at the election of the Executive or pursuant to any deferred
compensation plans then in effect together with any interest or desired earnings
thereon;
(iv) annual bonus, if any, accrued for a Year prior
to the Year in which employment terminates, but not yet paid to the Executive,
under any bonus or incentive compensation plan or plans in which the Executive
is a participant;
(v) a pro rata portion of the maximum bonus payable
to the Executive for the Year in which employment terminates under any bonus or
incentive compensation plan or plans in which the Executive is a participant,
determined as if the Executive had remained in employment for the full Year and
prorated based upon weeks, including partial weeks, of employment during that
Year;
(vi) all other payments and benefits to which the
Executive may be entitled under the terms of any applicable compensation
arrangement or benefit plan or program of the Company.
(b) Act means the Securities Exchange Act of 1934, as amended.
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(c) Affiliate of any specified persons means any other person
that, directly or indirectly, through one or more intermediaries, controls, or
is controlled by, or is under direct or indirect common control with such
specified person. For the purposes of this definition, "control" means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
(d) Annual Compensation shall mean the sum of:
(i) the Executive's annual base salary at the rate in
effect on the date of a termination of employment as described in Section 3 or
in Section 7(d) (or, in the event of a termination for Good Reason under Section
1(k)(i)(A) below, the annual base salary as in effect immediately before the
actions giving rise to Good Reason); plus
(ii) the greatest of the bonuses either paid or accrued
in either the Year of the Change in Control or the immediately preceding Year.
(e) Base Amount means an amount equal to the Executive's
Annualized Includable Compensation for the Base Period as defined in Section
280G(d)(1) and (2) of the Code (as hereinafter defined).
(f) Cause means (i) the executive's conviction of, or plea of
nolo contendere to, a felony; or (ii) willful and intentional misconduct,
willful neglect, or gross negligence, in the performance of the Executive's
duties, which has caused a demonstrable and serious injury to the Company,
monetary or otherwise.
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The Executive shall be given written notice that the Company intends to
terminate his employment for Cause. Such written notice shall specify the
particular acts, or failures to act, on the basis of which the decision to so
terminate employment was made.
In the case of a termination for Cause as described in Clause (ii),
above, the Executive shall be given the opportunity within 30 days of the
receipt of such notice to meet with the Board to defend such acts, or failures
to act, prior to termination. The Company may suspend the Executive's title and
authority pending such meeting, and such suspension shall not constitute "Good
Reason," as defined in subsection (k) below.
(g) Change in Control of the Company shall mean a Change in
Control of a nature that would be required to be reported in response to Item
5(f) of Schedule 14A of Regulation 14A promulgated under the Act or any
successor thereto, provided that without limiting the foregoing, a Change in
Control of the Company also shall mean the occurrence of any of the following
events:
(i) any "person" (as defined under Section 3(a)(9) of
the Act) or "group" of persons (as provided under Rule 13d-3 of the Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 or otherwise under the
Act), directly or indirectly (including as provided in Rule 13d-3(d)(1) of the
Act), of capital stock of the Company the holders of which are entitled to vote
for the election of directors ("voting stock") representing that percentage of
the Company's then outstanding voting stock (giving effect to the deemed
ownership of securities by such person or group, as provided in Rule 13d-3(d)(1)
of the Act, but not giving effect to any such deemed ownership of securities by
another person or group) equal to or greater than twenty-five percent (25%) of
all such voting stock;
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(ii) During any period of twenty four consecutive months,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (including for this purpose any new director whose
election or nomination for election by the Company's shareholders was approved
by a vote of at least a majority of the directors then still in office who were
directors at the beginning of such period) cease for any reason to constitute at
least a majority of the Board of Directors of the Company (excluding any Board
seat that is vacant or otherwise unoccupied).
(iii) There shall be consummated any consolidation,
merger, stock for stock exchange or similar transaction (collectively, "Merger
Transactions") involving securities of the Company in which holders of voting
stock of the Company immediately prior to such consummation own, as a group,
immediately after such consummation, voting stock of the Company (or, if the
Company does not survive the Merger Transaction, voting securities of the
corporation surviving such transaction) having less than 50% of the total voting
power in an election of directors of the Company (or such other surviving
corporation).
(h) Code means the Internal Revenue Code of 1986, including any
amendments thereto.
(i) Company Retirement Plan is defined in Section 1(r)(vi) below.
(j) Effective Date means the date this Agreement is executed by
the parties.
(k) Employment Period means a period commencing on the date of a
Change in Control of the Company and ending on the earlier of (i) the last day
of the twenty-fourth month following the month in which the Change in Control
occurs, or (ii) the Executive's Normal Retirement Date.
(l) Good Reason means:
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(i) any breach of this Agreement by the Company,
including without limitation (A) any reduction during the employment period in
the amount of the Executive's base salary or aggregate benefits as in effect
from time to time, (B) failure to provide the Executive with the same fringe
benefits that were provided to the Executive immediately prior to a Change in
Control of the Company, or with a package of fringe benefits (including paid
vacations) that, though one or more of such benefits may vary from those in
effect immediately prior to such a Change in Control, is substantially
comparable in all material respects to such fringe benefits taken as a whole, or
(C) any other breach by the Company of its obligations contained in Section 6
below;
(ii) without the Executive's express written consent,
the assignment to the Executive of any duties which are materially inconsistent
with the Executive's positions, duties, responsibilities and status immediately
prior to the Change in Control of the Company, a material change in the
Executive's reporting responsibilities, titles or offices as an employee and as
in effect immediately prior to the Change in Control, or a significant
reduction, in the Executive's title, duties or responsibilities, or in the level
of his support services;
(iii) the relocation of the Executive's principal
place of employment, without the Executive's written consent, to a location
outside the same metropolitan area in which the Executive was employed at the
time of such Change in Control, or the imposition of any requirement that the
Executive spend more than ninety business days per year at a location other than
such principal place of employment; or
(iv) any purported termination of the Executive's
employment for Cause, Disability or Retirement which is not effected pursuant to
a Notice of Termination satisfying the requirements of paragraph (n) below.
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Upon the occurrence of any of the events described in (i), (ii), (iii),
or (iv) above, the Executive shall give the Company written notice that such
event constitutes Good Reason, and the Company shall thereafter have thirty (30)
days in which to cure. If the Company has not cured in that time, the event
shall constitute Good Reason.
(m) Normal Retirement Date means Normal Retirement Date as
defined in the Banknorth Group, Inc. Retirement Plan.
(n) Notice of Termination shall mean a notice which shall
indicate the specific termination provision relied upon in this Agreement and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(o) Person or Group means a "person" or "group," as defined in
Section 1(g)(i) hereof.
(p) Plan Year with respect to any of the Retirement Plan, the
Thrift Plan (as defined below) or the Employee Stock Ownership Plan, the "plan
year" as defined in such plan.
(q) Retirement Plan means the Banknorth Group, Inc. Retirement
Plan or any successor plan.
(r) SERP Agreement means the Supplemental Retirement Agreement
between the Executive and the Company.
(s) Year means a calendar year unless otherwise specifically
provided.
2. Term of Agreement.
This Agreement shall begin on the Effective Date and shall continue until the
third anniversary of such date, provided that, on the first anniversary of the
Effective Date, and on each succeeding
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anniversary, the term shall be renewed for an additional period of one year
unless either party has given written notice that the term is not so renewed,
which notice must be delivered to the other party at least ninety (90) days
prior to the date of any such renewal, and further provided that if a Change in
Control of the Company occurs during such term, the term shall in all events
continue through the last day of the Employment Period. This Agreement is also
subject to earlier termination as provided in Section 3 below. All rights and
obligations hereunder shall survive to the extent necessary to the intended
enforcement thereof.
3. Termination of Employment Prior to a Change in Control.
(a) The Company and the Executive shall each retain the right
to terminate the employment of the Executive at any time prior to a Change in
Control of the Company. In the event the Executive's employment is terminated
prior to a Change in Control of the Company, this Agreement shall, except as
provided in Subsection (b) below, be terminated and of no further force and
effect, and any and all rights and obligations of the parties hereunder shall
cease.
(b) If the Executive's employment is terminated by the Company
prior to the occurrence of a Change in Control of the Company, and if it can be
shown that the Executive's termination (i) was at the direction or request of a
third party that had taken steps reasonably calculated to effect the Change in
Control of the Company thereafter, or (ii) otherwise occurred in connection
with, or in anticipation of, the Change in Control of the Company, the Executive
shall have the rights described in Section 7(d) below, as if a Change in Control
of the Company had occurred on the date immediately preceding such termination.
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4. Employment Following a Change in Control.
If a Change in Control of the Company occurs when the Executive is
employed by the Company, the Company will continue thereafter to employ the
Executive, and the Executive will remain in the employ of the Company, during
the Employment Period, in accordance with the terms and provisions of this
Agreement.
5. Duties.
During the Employment Period, the Executive shall serve in such
capacities and positions as may be assigned by the Company consistent with the
Executive's capacities and positions on the Effective Date and shall devote the
Executive's best efforts and all of the Executive's business time, attention and
skill to the business and affairs of the Company, as such business and affairs
now exist and as they may hereafter be conducted.
6. Compensation.
During the Employment Period, the Executive shall be compensated by the
Company as follows:
(a) the Executive shall receive, at such intervals and in
accordance with such standard policies as in effect on the date of the Change in
Control of the Company, an annual base salary not less than the Executive's
annual base salary as in effect on the date of the Change in Control of the
Company, subject to adjustment as hereinafter provided;
(b) the Executive shall be included in all plans providing
incentive compensation to executives, including but not limited to bonus,
deferred compensation, annual or other incentive compensation, supplemental
pension, stock ownership, stock option, stock appreciation, stock bonus
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and similar or comparable plans as any such plans are extended by the Company
from time to time to senior corporate officers, key employees and other
employees of comparable status;
(c) the Executive shall be reimbursed, at such intervals and
in accordance with such standard policies as may be in effect on the date of the
Change in Control of the Company, for any and all monies advanced in connection
with the Executive's employment for reasonable and necessary expenses incurred
by the Executive on behalf of the Company, including travel expenses;
(d) the Executive shall be included, to the extent eligible
thereunder, in any and all plans providing but not limited to, group life
insurance, hospitalization, disability, medical, dental, pension, profit sharing
and stock bonus plans, and shall be provided any and all other benefits and
perquisites made available to other employees of comparable status and position
at the expense of the Company on a comparable basis;
(e) the Executive shall receive annually not less than the
amount of paid vacation and not fewer than the number of paid holidays received
annually immediately prior to the Change in Control of the Company or available
annually to other employees of comparable status and position with the Company;
and
(f) During the Employment Period the Board of Directors of the
Company, or an appropriate committee thereof, will consider and appraise, at
least annually, the contributions of the Executive to the Company's operating
efficiency, growth, production and profits and, in accordance with past
practice, due consideration shall be given to the upward adjustment of the
Executive's compensation rate, at least annually, commensurate with increases
generally given to other senior corporate officers and key employees and as the
scope of the Executive's duties expands.
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7. Termination of Employment.
Any termination by the Company or the Executive of the Executive's employment
during the Employment Period shall be communicated by written Notice of
Termination to the Executive if such notice is delivered by the Company and to
the Company if such notice is delivered by the Executive. The Notice of
Termination shall comply with the requirements of Section 1(n).
(a) Termination for Disability. If during the Employment
Period, the Executive's employment is terminated on account of the Executive's
disability, as determined under the Company's long-term disability plan (as in
effect on the date of a Change in Control of the Company), the Executive shall
receive all Accrued Benefits, if any, and shall remain eligible for all benefits
as provided pursuant to the terms of any long-term disability programs of the
Company in effect at the time of such termination.
(b) Termination on the Executive's Death. If, during the
Employment Period, the Executive's employment is terminated on account of the
Executive's death, the Executive's estate or his designated beneficiary (or
beneficiaries), as applicable, shall receive the Accrued Benefits.
(c) Voluntary Termination or Termination for Cause. If, during
the Employment Period, (i) the Executive shall terminate employment with the
Company other than for Good Reason, or (ii) the Executive's employment is
terminated for Cause, the Executive shall receive from the Company only the
Accrued Benefits.
(d) Termination by the Company Without Cause or by the
Executive for Good Reason. If, during the Employment Period, the Executive's
employment with the Company is terminated by the Company other than for Cause,
or by the Executive for Good Reason, then:
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(i) the Executive shall be entitled to receive from
the Company the Accrued Benefits, except that, for this purpose, Accrued
Benefits shall not include any entitlement to severance under any Company
severance policy generally applicable to the Company's salaried employees;
(ii) the Executive shall receive from the Company, no
less than ten (10) days following termination of his employment, a lump sum
payment (the "Termination Payment") equal to three (3) times the Annual
Compensation;
(iii) for purposes of determining the Executive's
benefit under the SERP Agreement, the Executive shall be credited with 36
additional months of age and of service determined as follows:
(A) The additional 36 months of age and service
shall be applied for purposes of benefit accrual, vesting, eligibility for early
retirement, subsidized early retirement factors, actuarial equivalence and any
other purposes under the Retirement Plan and the SERP Agreement.
(B) Any provision under the Retirement Plan or
the SERP Agreement prohibiting the accrual of any additional benefits after the
Executive has been credited with more than a stated number of years of service
shall be disregarded.
(C) For purposes of determining the amount of
the Executive's benefit under the SERP Agreement, the reduction in respect of
the benefit paid under the Retirement Plan shall be based on the Executive's
actual Retirement Plan benefit (that is, without any additional deemed service).
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(D) For purposes of determining the Early
Retirement Benefit (as defined in the SERP Agreement) and other optional forms
of benefit under the SERP Agreement, if the Executive is less than fifty-five
(55) years of age, the Executive shall be deemed to be at least fifty-five (55)
years of age on the date his employment with the Company terminates,
notwithstanding the Executive's actual age, if less.
(E) the Benefit Computation Base (as defined in
the SERP Agreement) shall be determined as if it were being calculated at the
end of the 36 month period of service credited to the Executive under this
Section 7(d)(iii) and as if during such 36 additional month period the
Executive's annualized compensation was the same as such compensation for (I)
the Year during which the Executive's employment is terminated, or, (II) any
Year before the Change in Control occurred, whichever is greater.
(F) Any amendment to the Retirement Plan within
the twelve (12) month period prior to the termination of the Executive's
employment shall be disregarded to the extent that the application of such
amendment would decrease the total amount of the benefits provided for in this
Section 7(d)(iii).
(G) The Executive shall be entitled to a lump
sum distribution of his SERP in all events, and the Company shall not be
entitled to require payment over a longer period. If the Executive elects a lump
sum payment (i) the actuarial equivalent benefit shall be determined in
accordance with the provisions of the Retirement Plan as in effect immediately
prior to the Change in Control, or as in effect on termination of the
Executive's employment, whichever creates the greater benefit, and (ii) payment
shall be made within thirty (30) days following the later
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of (A) termination of the Executive's employment, or (B) the date the Executive
gives written notice of the Executive's intent to elect a lump sum.
(iv) the Executive shall be paid a lump sum amount equal to
(A) the sum of (I) the aggregate contributions and forfeitures allocated to the
Executive's account under the Banknorth Group, Inc. Profit Sharing and Employee
Stock Ownership Plan (the "Employee Stock Ownership Plan") for the Plan Year
ending immediately prior to the Change of Control, or, if different, the Plan
Year ending immediately prior to the termination of the Executive's employment,
whichever Plan Year would produce the greater aggregate value, (II) the total
aggregate value of all contributions, other than elective contributions by the
Executive and employer matching contributions relating thereto, and forfeitures
allocated to the Executive's account under the Banknorth Group, Inc. Thrift
Incentive Plan (the "Thrift Plan") for the Plan Year ending immediately prior to
the Change of Control, or, if different, the Plan Year ending immediately prior
to the termination of the Executive's employment, whichever Plan Year would
produce the greater aggregate value, and (III) (A) the matching contributions
under the Thrift Plan (or its successor) which would have been credited under
such plan on Executive's behalf, if the Executive had contributed the maximum
salary deferral contribution allowable under Section 402(g) of the Code, for the
calendar year in which he terminated employment with the Company, multiplied by
(B) three (3).
(v) all rights under any equity or long-term incentive plan
shall be fully vested;
(vi) the Executive shall (A) continue to be covered at the
expense of the Company by the same or equivalent hospital, medical, dental,
accident, disability and life insurance
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<PAGE> 15
coverage as in effect for the Executive immediately prior to termination of his
employment, until the earlier of (I) 36 months following termination of
employment, or (II) the date the Executive has commenced new employment and has
thereby become eligible for comparable benefits; provided that, with respect to
any of the coverages described above, if such coverage is provided through an
insurance policy with an insurance company unaffiliated with the initial
Company, and if under the terms of the applicable policy, it is not possible to
provide continued coverage (including if continued coverage under the policy
would increase the Company's cost allocable to the Executive by more than 100%),
then the Company shall pay the Executive a lump sum cash amount, no later than
sixty (60) days following termination of employment an amount equal to twice the
aggregate allocable cost of such coverage as applicable immediately prior to
termination of employment, such payment to be made without any discount for
present value.
8. Certain Supplemental Payments by the Company.
(a) In the event the Executive's employment is terminated
pursuant to Section 7(d) above, and if in connection therewith it is determined
that (i) part or all of the compensation and benefits to be paid to the
Executive constitute "parachute payments" under Section 280G of the Code, and
(ii) the payment thereof will cause the Executive to incur excise tax under
Section 4999 of the Code, the Company, on or before the date for payment of such
excise tax, shall pay the Executive, in lump sum, an amount (the "Gross-Up
Amount") such that, after payment of all federal, state and local income tax and
any additional excise tax under Section 4999 of the Code in respect of the
Gross-Up Amount payment, the Executive will be fully reimbursed for the amount
of such excise tax.
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<PAGE> 16
(b) The determination of the Parachute Amount, the Base Amount
and the Gross-Up Amount, as well as any other calculations necessary to
implement this Section 8 shall be made by a nationally recognized accounting or
benefits consulting firm selected by the Executive and reasonably satisfactory
to the Company and which has not performed services, other than minor indirect
or incidental services, for either the Company or the Executive for three years
prior to the date the Consultant is retained for this purpose. The Consultant's
fee shall be paid by the Company.
(c) As promptly as practicable following such determination
and the elections hereunder, the Company shall pay to or distribute to or for
the benefit of the Executive such amounts as are then due to the Executive under
this Agreement and shall promptly pay to or distribute for the benefit of the
Executive in the future such amounts as become due to the Executive under this
Agreement.
(d) As a result of the uncertainty in the application of
Section 280G of the Code at the time of an initial determination hereunder, it
is possible that payments will not have been made by the Company which should
have been made under clause (a) of this Section 8 ("Underpayment"). In the event
that there is a final determination by the Internal Revenue Service, or a final
determination by a court of competent jurisdiction, that an Underpayment has
been made and the Executive thereafter is required to make any payment of an
excise tax, income tax, any interest or penalty, the accounting or benefits
consulting firm selected under clause (b) above shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Executive.
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<PAGE> 17
9. Further Obligations of the Executive.
(a) Confidentiality. During and following the Executive's
employment by the Company, the Executive shall hold in confidence and not
directly or indirectly disclose or use or copy or make lists of any confidential
information or proprietary data of the Company, except to the extent authorized
in writing by the Board of Directors of the Company or required by any court or
administrative agency, other than to an employee of the Company or a person to
whom disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of duties as an executive of the Company.
Confidential information shall not include any information known generally to
the public or any information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that of the
Company. All records, files, documents and materials or copies thereof, relating
to the Company's business which the Executive shall prepare, or use, or come
into contact with, shall be and remain the sole property of the Company and
shall be promptly returned to the Company upon termination of employment with
the Company.
(b) Non-Solicitation. For the period from the Effective Date
until the second anniversary of the termination of the Executive's employment,
the Executive will not, directly or indirectly, contact, approach or solicit for
the purpose of offering employment to or hiring (whether as an employee,
consultant, agent, independent contractor or otherwise) any officer of the
Company, or its affiliates, other than on the Company's behalf, without the
prior written consent of the Company.
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<PAGE> 18
10. Equitable Relief.
Executive acknowledges and agrees that in the event of a breach by
Executive of any of the provisions of Section 9 hereof, the Company shall suffer
irreparable harm for which monetary damages alone will constitute an
insufficient remedy. Consequently, in the event of any such breach, the Company
may, in addition to other rights and remedies existing in its favor, apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof, in each case without the requirement of posting a bond
or proving actual damages.
11. Expenses and Interest.
If, after a Change in Control of the Company, a good faith dispute
arises with respect to the enforcement of the Executive's rights under this
Agreement, or if any legal or arbitration proceeding shall be brought in good
faith to enforce or interpret any provision contained herein, or to recover
damages for breach hereof, the Executive shall recover from the Company any
reasonable attorney's fees and necessary costs and disbursements incurred as a
result of such dispute, and prejudgment interest on any money judgment or
arbitration award obtained by the Executive calculated at the rate of interest
announced by Peoples Heritage Bank, or the successor thereto, from time to time
as its prime rate from the date that payments to him should have been made under
this Agreement.
12. Payment Obligations Absolute. The Company's obligation during and
after the Employment Period to pay the Executive the compensation and to make
the arrangements provided herein shall be absolute and unconditional and shall
not be affected by any circumstances, including, without limitation, any setoff,
counterclaim, recoupment, defense or other right which the Company may have
against him or anyone else. All amounts payable by the Company hereunder shall
be paid
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<PAGE> 19
without notice or demand. Each and every payment made hereunder by the
Company shall be final and the Company will not seek to recover all or any part
of such payment from the Executive or from whomsoever may be entitled thereto,
for any reason whatever except as provided in Section 8(d) above.
13. Successors.
(a) If the Company sells, assigns, or transfers all or
substantially all of its business and assets to any Person, excluding Affiliates
of the Company, or if the Company merges into or consolidates or otherwise
combines with any Person which is a continuing or successor entity, then the
Company shall assign all of its rights, title and interest in this Agreement as
of the date of such event to the Person which is either the acquiring or
successor Company, and such Person shall assume in writing and perform from and
after the date of such written assignment all of the terms, conditions and
provisions imposed by this Agreement upon the Company. Failure of the Company to
obtain such written assignment shall be a breach of this Agreement. In case of
such assignment by the Company and of written assumption and agreement by such
Person, all further rights as well as all other obligations of the Company under
this Agreement thenceforth shall cease and terminate and thereafter the
expression "the Company" wherever used herein shall be deemed to mean such
Person or Persons.
(b) This Agreement and all rights of the Executive shall inure
to the benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries.
All amounts payable to the Executive hereunder shall be paid, in the event of
the Executive's death, to the Executive's estate, heirs and representatives.
This Agreement shall inure to the benefit of, be binding upon and be enforceable
by, any successor,
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<PAGE> 20
surviving or resulting Company or other entity to which all or substantially all
of the Company's business and assets shall be transferred. This Agreement shall
not be terminated by the voluntary or involuntary dissolution of the Company.
14. Enforcement. The provisions of this Agreement shall be regarded as
divisible, and if any such provisions or any part hereof are declared invalid or
unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
15. Amendment. This Agreement may not be amended or modified at any
time except by a written instrument executed by the Company and the Executive if
such amendment or modification occurs before any Change in Control, or by the
Executive and the Company after any Change in Control.
16. Withholding. The Company shall be entitled to withhold from amounts
to be paid to the Executive hereunder any federal, state or local withholding or
other taxes, or charge which it is from time to time required to withhold. The
Company shall be entitled to rely on an opinion of counsel if any question as to
the amount or requirement of any such withholding shall arise.
17. Governing Law.
This Agreement and the rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of Maine.
18. Arbitration.
Any dispute arising out of this Agreement shall be determined by
arbitration in the State of Maine under the rules of the American Arbitration
Association then in effect and judgment upon any award pursuant to such
arbitration may be enforced in any court having jurisdiction thereof.
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<PAGE> 21
19. Notice.
Notices given pursuant to this Agreement shall be in writing and shall
be deemed given when received and, if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only postage
prepaid, to the Company at:
Banknorth Group, Inc.
P.O. Box 9540
One Portland Square
Portland, ME 04112
Attn: Clerk
or if to the Executive, at the address included in the Company's records, or to
such other address as the party to be notified shall have given to the other.
20. No Waiver.
No waiver by any party at any time of any breach by another party of,
or compliance with, any condition or provision of this Agreement to be performed
by another party shall be deemed a waiver of similar or dissimilar provisions or
conditions at any time.
21. Headings. The headings herein contained are for reference only and
shall not affect the meaning or interpretation of any provision of this
Agreement.
22. Entire Agreement.
(a) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. Except as provided in
paragraph (b) below, all prior correspondence and proposals (including but not
limited to summaries of proposed terms) and all prior promises, representations,
understandings, arrangements and agreements relating to such subject matter
(including without limitation the Change-in-Control Agreement, as defined below)
are merged herein and superseded hereby; provided however, that the terms of the
SERP Agreement,
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<PAGE> 22
the Retirement Plan, the Thrift Plan, the Employee Stock Ownership Plan, and any
effective applicable employment agreement shall be incorporated herein and made
a part hereof to the extent not inconsistent with the terms hereof.
(b) The Company acknowledges that it has agreed, in an
Agreement and Plan of Merger, dated as of June 1, 1999 and amended as of
December 22, 1999, between Banknorth Group, Inc. ("Banknorth") and the Company
(the "Merger Agreement"), to honor the obligations of Banknorth under the
Change-in-Control Agreement, dated as of July 16, 1998 (the "Change-in-
Control" Agreement") between Banknorth and the Executive. Notwithstanding any
provision of this Agreement or the Change-in-Control Agreement to the contrary,
(i) in the event the Executive's employment with the Company is terminated for
any reason by the Executive or by the Company, other than by the Company for
cause (as defined in the Change-in-Control Agreement), by the Executive or by
the Company pursuant to Section 7(d) of this Agreement or as a result of the
death of the Executive, within one year of the Effective Date (the "One-Year
Period"), the Executive shall (x) be entitled to receive the payments and
benefits set forth in Section 3 of the Change-in-Control Agreement (subject to
the limitation contained in Section 3.3 thereof) and not this Agreement, which
shall be terminated, and (y) comply with the requirements of Section 5 of the
Change-in-Control Agreement, and (ii) in the event the Executive's employment
with the Company is terminated by the Executive or by the Company pursuant to
Section 7(d) of this Agreement during the One-Year Period, the Executive shall
be entitled to receive the payments and benefits set forth in this Agreement and
not the Change-in-Control Agreement, which shall be terminated, it being the
express intention of the Company and the Executive that in no event shall the
Executive be entitled to receive benefits under both this Agreement and the
Change-in-Control Agreement. After the One-Year Period, and provided that the
Executive has not become entitled to receive benefits under the
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<PAGE> 23
Change-in-Control Agreement, the Change-in-Control Agreement shall terminate and
be of no further force and effect without any action on the part of the Company
and the Executive, and the Executive thereafter shall be entitled to receive
such benefits as he may be entitled to receive in accordance with the terms of
this Agreement. The parties agree that this Agreement shall constitute a written
modification to the Change-in-Control Agreement which satisfies the requirements
of Section 11 thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
BANKNORTH GROUP, INC.
By: /s/ Carol L. Mitchell
---------------------------
Carol L. Mitchell
Executive Vice President, Secretary and General Counsel
/s/ Richard J. Fitzpatrick
---------------------------
Richard J. Fitzpatrick
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<PAGE> 1
EXHIBIT 10.3
BANKNORTH GROUP, INC.
SEVERANCE AGREEMENT
This AGREEMENT, made and entered into as of the 10th day of May 2000, by
and among BANKNORTH GROUP, INC. (the "Company") and Richard J. Fitzpatrick (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Company in a key executive
capacity and possesses intimate knowledge of the business and affairs of the
Company; and
WHEREAS, the Company desires to ensure, insofar as possible, that it will
continue to have the benefit of the Executive's services and to protect its
confidential information and goodwill; and
WHEREAS, the Company recognizes that circumstances may arise in which a
change in the control of the Company occurs, thereby causing uncertainty of
employment without regard to the Executive's competence or past contributions;
and WHEREAS, the Company and the Executive wish to provide reasonable security
to the Executive against changes in the Executive's relationship with the
Company in the event of such change in control;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
<PAGE> 2
1. Definitions
(a) Accrued Benefits means:
(i) All salary earned or accrued through the date the
Executive's employment is terminated;
(ii) reimbursement for any and all monies advanced in
connection with the Executive's employment for reasonable and necessary expenses
incurred by the Executive through the date the Executive's employment is
terminated;
(iii) any and all other compensation previously
earned and deferred at the election of the Executive or pursuant to any deferred
compensation plans then in effect together with any interest or desired earnings
thereon;
(iv) annual bonus, if any, accrued for a Year prior
to the Year in which employment terminates, but not yet paid to the Executive,
under any bonus or incentive compensation plan or plans in which the Executive
is a participant;
(v) a pro rata portion of the maximum bonus payable
to the Executive for the Year in which employment terminates under any bonus or
incentive compensation plan or plans in which the Executive is a participant,
determined as if the Executive had remained in employment for the full Year and
prorated based upon weeks, including partial weeks, of employment during that
Year;
(vi) all other payments and benefits to which the
Executive may be entitled under the terms of any applicable compensation
arrangement or benefit plan or program of the Company.
(b) Act means the Securities Exchange Act of 1934, as amended.
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<PAGE> 3
(c) Affiliate of any specified persons means any other person that,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under direct or indirect common control with such specified
person. For the purposes of this definition, "control" means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
(d) Annual Compensation shall mean the sum of:
(i) the Executive's annual base salary at the rate in effect on the
date of a termination of employment as described in Section 3 or in Section 7(d)
(or, in the event of a termination for Good Reason under Section 1(k)(i)(A)
below, the annual base salary as in effect immediately before the actions giving
rise to Good Reason); plus
(ii) the greatest of the bonuses either paid or accrued in either
the Year of the Change in Control or the immediately preceding Year.
(e) Base Amount means an amount equal to the Executive's Annualized
Includable Compensation for the Base Period as defined in Section 280G(d)(1) and
(2) of the Code (as hereinafter defined).
(f) Cause means (i) the executive's conviction of, or plea of nolo
contendere to, a felony; or (ii) willful and intentional misconduct, willful
neglect, or gross negligence, in the performance of the Executive's duties,
which has caused a demonstrable and serious injury to the Company, monetary or
otherwise.
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<PAGE> 4
The Executive shall be given written notice that the Company intends to
terminate his employment for Cause. Such written notice shall specify the
particular acts, or failures to act, on the basis of which the decision to so
terminate employment was made.
In the case of a termination for Cause as described in Clause (ii),
above, the Executive shall be given the opportunity within 30 days of the
receipt of such notice to meet with the Board to defend such acts, or failures
to act, prior to termination. The Company may suspend the Executive's title and
authority pending such meeting, and such suspension shall not constitute "Good
Reason," as defined in subsection (k) below.
(g) Change in Control of the Company shall mean a Change in Control of a
nature that would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A promulgated under the Act or any successor
thereto, provided that without limiting the foregoing, a Change in Control of
the Company also shall mean the occurrence of any of the following events:
(i) any "person" (as defined under Section 3(a)(9) of the Act)
or "group" of persons (as provided under Rule 13d-3 of the Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 or otherwise under the Act),
directly or indirectly (including as provided in Rule 13d-3(d)(1) of the Act),
of capital stock of the Company the holders of which are entitled to vote for
the election of directors ("voting stock") representing that percentage of the
Company's then outstanding voting stock (giving effect to the deemed ownership
of securities by such person or group, as provided in Rule 13d-3(d)(1) of the
Act, but not giving effect to any such deemed ownership of securities by another
person or group) equal to or greater than twenty-five percent (25%) of all such
voting stock;
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<PAGE> 5
(ii) During any period of twenty four consecutive months,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (including for this purpose any new director whose
election or nomination for election by the Company's shareholders was approved
by a vote of at least a majority of the directors then still in office who were
directors at the beginning of such period) cease for any reason to constitute at
least a majority of the Board of Directors of the Company (excluding any Board
seat that is vacant or otherwise unoccupied).
(iii) There shall be consummated any consolidation, merger,
stock for stock exchange or similar transaction (collectively, "Merger
Transactions") involving securities of the Company in which holders of voting
stock of the Company immediately prior to such consummation own, as a group,
immediately after such consummation, voting stock of the Company (or, if the
Company does not survive the Merger Transaction, voting securities of the
corporation surviving such transaction) having less than 50% of the total voting
power in an election of directors of the Company (or such other surviving
corporation).
(h) Code means the Internal Revenue Code of 1986, including
any amendments thereto.
(i) Company Retirement Plan is defined in Section 1(r)(vi)
below.
(j) Effective Date means the date this Agreement is
executed by the parties.
(k) Employment Period means a period commencing on the date
of a Change in Control of the Company and ending on the earlier of (i) the last
day of the twenty-fourth month following the month in which the Change in
Control occurs, or (ii) the Executive's Normal Retirement Date.
(l) Good Reason means:
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<PAGE> 6
(i) any breach of this Agreement by the Company, including
without limitation (A) any reduction during the employment period in the amount
of the Executive's base salary or aggregate benefits as in effect from time to
time, (B) failure to provide the Executive with the same fringe benefits that
were provided to the Executive immediately prior to a Change in Control of the
Company, or with a package of fringe benefits (including paid vacations) that,
though one or more of such benefits may vary from those in effect immediately
prior to such a Change in Control, is substantially comparable in all material
respects to such fringe benefits taken as a whole, or (C) any other breach by
the Company of its obligations contained in Section 6 below;
(ii) without the Executive's express written consent, the
assignment to the Executive of any duties which are materially inconsistent with
the Executive's positions, duties, responsibilities and status immediately prior
to the Change in Control of the Company, a material change in the Executive's
reporting responsibilities, titles or offices as an employee and as in effect
immediately prior to the Change in Control, or a significant reduction, in the
Executive's title, duties or responsibilities, or in the level of his support
services;
(iii) the relocation of the Executive's principal place of
employment, without the Executive's written consent, to a location outside the
same metropolitan area in which the Executive was employed at the time of such
Change in Control, or the imposition of any requirement that the Executive spend
more than ninety business days per year at a location other than such principal
place of employment; or
(iv) any purported termination of the Executive's employment
for Cause, Disability or Retirement which is not effected pursuant to a Notice
of Termination satisfying the requirements of paragraph (n) below.
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<PAGE> 7
Upon the occurrence of any of the events described in (i), (ii), (iii),
or (iv) above, the Executive shall give the Company written notice that such
event constitutes Good Reason, and the Company shall thereafter have thirty (30)
days in which to cure. If the Company has not cured in that time, the event
shall constitute Good Reason.
(m) Normal Retirement Date means Normal Retirement Date as
defined in the Banknorth Group, Inc. Retirement Plan.
(n) Notice of Termination shall mean a notice which shall
indicate the specific termination provision relied upon in this Agreement and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(o) Person or Group means a "person" or "group," as defined
in Section 1(g)(i) hereof.
(p) Plan Year with respect to any of the Retirement Plan,
the Thrift Plan (as defined below) or the Employee Stock Ownership Plan, the
"plan year" as defined in such plan.
(q) Retirement Plan means the Banknorth Group, Inc.
Retirement Plan or any successor plan.
(r) SERP Agreement means the Supplemental Retirement
Agreement between the Executive and the Company.
(s) Year means a calendar year unless otherwise specifically
provided. 2. Term of Agreement. This Agreement shall begin on the Effective Date
and shall continue until the third anniversary of such date, provided that, on
the first anniversary of the Effective Date, and on each succeeding
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<PAGE> 8
anniversary, the term shall be renewed for an additional period of one year
unless either party has given written notice that the term is not so renewed,
which notice must be delivered to the other party at least ninety (90) days
prior to the date of any such renewal, and further provided that if a Change in
Control of the Company occurs during such term, the term shall in all events
continue through the last day of the Employment Period. This Agreement is also
subject to earlier termination as provided in Section 3 below. All rights and
obligations hereunder shall survive to the extent necessary to the intended
enforcement thereof.
3. Termination of Employment Prior to a Change in Control.
(a) The Company and the Executive shall each retain the right
to terminate the employment of the Executive at any time prior to a Change in
Control of the Company. In the event the Executive's employment is terminated
prior to a Change in Control of the Company, this Agreement shall, except as
provided in Subsection (b) below, be terminated and of no further force and
effect, and any and all rights and obligations of the parties hereunder shall
cease.
(b) If the Executive's employment is terminated by the Company
prior to the occurrence of a Change in Control of the Company, and if it can be
shown that the Executive's termination (i) was at the direction or request of a
third party that had taken steps reasonably calculated to effect the Change in
Control of the Company thereafter, or (ii) otherwise occurred in connection
with, or in anticipation of, the Change in Control of the Company, the Executive
shall have the rights described in Section 7(d) below, as if a Change in Control
of the Company had occurred on the date immediately preceding such termination.
8
<PAGE> 9
4. Employment Following a Change in Control.
If a Change in Control of the Company occurs when the Executive is
employed by the Company, the Company will continue thereafter to employ the
Executive, and the Executive will remain in the employ of the Company, during
the Employment Period, in accordance with the terms and provisions of this
Agreement.
5. Duties.
During the Employment Period, the Executive shall serve in such
capacities and positions as may be assigned by the Company consistent with the
Executive's capacities and positions on the Effective Date and shall devote the
Executive's best efforts and all of the Executive's business time, attention and
skill to the business and affairs of the Company, as such business and affairs
now exist and as they may hereafter be conducted.
6. Compensation.
During the Employment Period, the Executive shall be compensated by the
Company as follows:
(a) the Executive shall receive, at such intervals and in
accordance with such standard policies as in effect on the date of the Change in
Control of the Company, an annual base salary not less than the Executive's
annual base salary as in effect on the date of the Change in Control of the
Company, subject to adjustment as hereinafter provided;
(b) the Executive shall be included in all plans providing
incentive compensation to executives, including but not limited to bonus,
deferred compensation, annual or other incentive compensation, supplemental
pension, stock ownership, stock option, stock appreciation, stock bonus
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<PAGE> 10
and similar or comparable plans as any such plans are extended by the Company
from time to time to senior corporate officers, key employees and other
employees of comparable status;
(c) the Executive shall be reimbursed, at such intervals and
in accordance with such standard policies as may be in effect on the date of the
Change in Control of the Company, for any and all monies advanced in connection
with the Executive's employment for reasonable and necessary expenses incurred
by the Executive on behalf of the Company, including travel expenses;
(d) the Executive shall be included, to the extent eligible
thereunder, in any and all plans providing but not limited to, group life
insurance, hospitalization, disability, medical, dental, pension, profit sharing
and stock bonus plans, and shall be provided any and all other benefits and
perquisites made available to other employees of comparable status and position
at the expense of the Company on a comparable basis;
(e) the Executive shall receive annually not less than the
amount of paid vacation and not fewer than the number of paid holidays received
annually immediately prior to the Change in Control of the Company or available
annually to other employees of comparable status and position with the Company;
and
(f) During the Employment Period the Board of Directors of the
Company, or an appropriate committee thereof, will consider and appraise, at
least annually, the contributions of the Executive to the Company's operating
efficiency, growth, production and profits and, in accordance with past
practice, due consideration shall be given to the upward adjustment of the
Executive's compensation rate, at least annually, commensurate with increases
generally given to other senior corporate officers and key employees and as the
scope of the Executive's duties expands.
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<PAGE> 11
7. Termination of Employment.
Any termination by the Company or the Executive of the Executive's employment
during the Employment Period shall be communicated by written Notice of
Termination to the Executive if such notice is delivered by the Company and to
the Company if such notice is delivered by the Executive. The Notice of
Termination shall comply with the requirements of Section 1(n).
(a) Termination for Disability. If during the Employment
Period, the Executive's employment is terminated on account of the Executive's
disability, as determined under the Company's long-term disability plan (as in
effect on the date of a Change in Control of the Company), the Executive shall
receive all Accrued Benefits, if any, and shall remain eligible for all benefits
as provided pursuant to the terms of any long-term disability programs of the
Company in effect at the time of such termination.
(b) Termination on the Executive's Death. If, during the
Employment Period, the Executive's employment is terminated on account of the
Executive's death, the Executive's estate or his designated beneficiary (or
beneficiaries), as applicable, shall receive the Accrued Benefits.
(c) Voluntary Termination or Termination for Cause. If, during
the Employment Period, (i) the Executive shall terminate employment with the
Company other than for Good Reason, or (ii) the Executive's employment is
terminated for Cause, the Executive shall receive from the Company only the
Accrued Benefits.
(d) Termination by the Company Without Cause or by the
Executive for Good Reason. If, during the Employment Period, the Executive's
employment with the Company is terminated by the Company other than for Cause,
or by the Executive for Good Reason, then:
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<PAGE> 12
(i) the Executive shall be entitled to receive from the Company the
Accrued Benefits, except that, for this purpose, Accrued Benefits shall not
include any entitlement to severance under any Company severance policy
generally applicable to the Company's salaried employees;
(ii) the Executive shall receive from the Company, no less than ten
(10) days following termination of his employment, a lump sum payment (the
"Termination Payment") equal to three (3) times the Annual Compensation;
(iii) for purposes of determining the Executive's benefit under the
SERP Agreement, the Executive shall be credited with 36 additional months of age
and of service determined as follows:
(A) The additional 36 months of age and service shall be
applied for purposes of benefit accrual, vesting, eligibility for early
retirement, subsidized early retirement factors, actuarial equivalence and any
other purposes under the Retirement Plan and the SERP Agreement.
(B) Any provision under the Retirement Plan or the SERP
Agreement prohibiting the accrual of any additional benefits after the Executive
has been credited with more than a stated number of years of service shall be
disregarded.
(C) For purposes of determining the amount of the
Executive's benefit under the SERP Agreement, the reduction in respect of the
benefit paid under the Retirement Plan shall be based on the Executive's actual
Retirement Plan benefit (that is, without any additional deemed service).
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(D) For purposes of determining the Early Retirement Benefit
(as defined in the SERP Agreement) and other optional forms of benefit under the
SERP Agreement, if the Executive is less than fifty-five (55) years of age, the
Executive shall be deemed to be at least fifty-five (55) years of age on the
date his employment with the Company terminates, notwithstanding the Executive's
actual age, if less.
(E) the Benefit Computation Base (as defined in the SERP
Agreement) shall be determined as if it were being calculated at the end of the
36 month period of service credited to the Executive under this Section
7(d)(iii) and as if during such 36 additional month period the Executive's
annualized compensation was the same as such compensation for (I) the Year
during which the Executive's employment is terminated, or, (II) any Year before
the Change in Control occurred, whichever is greater.
(F) Any amendment to the Retirement Plan within the twelve
(12) month period prior to the termination of the Executive's employment shall
be disregarded to the extent that the application of such amendment would
decrease the total amount of the benefits provided for in this Section
7(d)(iii).
(G) The Executive shall be entitled to a lump sum
distribution of his SERP in all events, and the Company shall not be entitled to
require payment over a longer period. If the Executive elects a lump sum payment
(i) the actuarial equivalent benefit shall be determined in accordance with the
provisions of the Retirement Plan as in effect immediately prior to the Change
in Control, or as in effect on termination of the Executive's employment,
whichever creates the greater benefit, and (ii) payment shall be made within
thirty (30) days following the later
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<PAGE> 14
of (A) termination of the Executive's employment, or (B) the date the Executive
gives written notice of the Executive's intent to elect a lump sum.
(iv) the Executive shall be paid a lump sum amount equal to
(A) the sum of (I) the aggregate contributions and forfeitures allocated to the
Executive's account under the Banknorth Group, Inc. Profit Sharing and Employee
Stock Ownership Plan (the "Employee Stock Ownership Plan") for the Plan Year
ending immediately prior to the Change of Control, or, if different, the Plan
Year ending immediately prior to the termination of the Executive's employment,
whichever Plan Year would produce the greater aggregate value, (II) the total
aggregate value of all contributions, other than elective contributions by the
Executive and employer matching contributions relating thereto, and forfeitures
allocated to the Executive's account under the Banknorth Group, Inc. Thrift
Incentive Plan (the "Thrift Plan") for the Plan Year ending immediately prior to
the Change of Control, or, if different, the Plan Year ending immediately prior
to the termination of the Executive's employment, whichever Plan Year would
produce the greater aggregate value, and (III) (A) the matching contributions
under the Thrift Plan (or its successor) which would have been credited under
such plan on Executive's behalf, if the Executive had contributed the maximum
salary deferral contribution allowable under Section 402(g) of the Code, for the
calendar year in which he terminated employment with the Company, multiplied by
(B) three (3).
(v) all rights under any equity or long-term incentive plan
shall be fully vested;
(vi) the Executive shall (A) continue to be covered at the
expense of the Company by the same or equivalent hospital, medical, dental,
accident, disability and life insurance
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<PAGE> 15
coverage as in effect for the Executive immediately prior to termination of his
employment, until the earlier of (I) 36 months following termination of
employment, or (II) the date the Executive has commenced new employment and has
thereby become eligible for comparable benefits; provided that, with respect to
any of the coverages described above, if such coverage is provided through an
insurance policy with an insurance company unaffiliated with the initial
Company, and if under the terms of the applicable policy, it is not possible to
provide continued coverage (including if continued coverage under the policy
would increase the Company's cost allocable to the Executive by more than 100%),
then the Company shall pay the Executive a lump sum cash amount, no later than
sixty (60) days following termination of employment an amount equal to twice the
aggregate allocable cost of such coverage as applicable immediately prior to
termination of employment, such payment to be made without any discount for
present value.
8. Certain Supplemental Payments by the Company.
(a) In the event the Executive's employment is terminated
pursuant to Section 7(d) above, and if in connection therewith it is determined
that (i) part or all of the compensation and benefits to be paid to the
Executive constitute "parachute payments" under Section 280G of the Code, and
(ii) the payment thereof will cause the Executive to incur excise tax under
Section 4999 of the Code, the Company, on or before the date for payment of such
excise tax, shall pay the Executive, in lump sum, an amount (the "Gross-Up
Amount") such that, after payment of all federal, state and local income tax and
any additional excise tax under Section 4999 of the Code in respect of the
Gross-Up Amount payment, the Executive will be fully reimbursed for the amount
of such excise tax.
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(b) The determination of the Parachute Amount, the Base Amount
and the Gross- Up Amount, as well as any other calculations necessary to
implement this Section 8 shall be made by a nationally recognized accounting or
benefits consulting firm selected by the Executive and reasonably satisfactory
to the Company and which has not performed services, other than minor indirect
or incidental services, for either the Company or the Executive for three years
prior to the date the Consultant is retained for this purpose. The Consultant's
fee shall be paid by the Company.
(c) As promptly as practicable following such determination
and the elections hereunder, the Company shall pay to or distribute to or for
the benefit of the Executive such amounts as are then due to the Executive under
this Agreement and shall promptly pay to or distribute for the benefit of the
Executive in the future such amounts as become due to the Executive under this
Agreement.
(d) As a result of the uncertainty in the application of
Section 280G of the Code at the time of an initial determination hereunder, it
is possible that payments will not have been made by the Company which should
have been made under clause (a) of this Section 8 ("Underpayment"). In the event
that there is a final determination by the Internal Revenue Service, or a final
determination by a court of competent jurisdiction, that an Underpayment has
been made and the Executive thereafter is required to make any payment of an
excise tax, income tax, any interest or penalty, the accounting or benefits
consulting firm selected under clause (b) above shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Executive.
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9. Further Obligations of the Executive.
(a) Confidentiality. During and following the Executive's
employment by the Company, the Executive shall hold in confidence and not
directly or indirectly disclose or use or copy or make lists of any confidential
information or proprietary data of the Company, except to the extent authorized
in writing by the Board of Directors of the Company or required by any court or
administrative agency, other than to an employee of the Company or a person to
whom disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of duties as an executive of the Company.
Confidential information shall not include any information known generally to
the public or any information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that of the
Company. All records, files, documents and materials or copies thereof, relating
to the Company's business which the Executive shall prepare, or use, or come
into contact with, shall be and remain the sole property of the Company and
shall be promptly returned to the Company upon termination of employment with
the Company.
(b) Non-Solicitation. For the period from the Effective Date
until the second anniversary of the termination of the Executive's employment,
the Executive will not, directly or indirectly, contact, approach or solicit for
the purpose of offering employment to or hiring (whether as an employee,
consultant, agent, independent contractor or otherwise) any officer of the
Company, or its affiliates, other than on the Company's behalf, without the
prior written consent of the Company.
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10. Equitable Relief.
Executive acknowledges and agrees that in the event of a breach by
Executive of any of the provisions of Section 9 hereof, the Company shall suffer
irreparable harm for which monetary damages alone will constitute an
insufficient remedy. Consequently, in the event of any such breach, the Company
may, in addition to other rights and remedies existing in its favor, apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof, in each case without the requirement of posting a bond
or proving actual damages.
11. Expenses and Interest.
If, after a Change in Control of the Company, a good faith dispute
arises with respect to the enforcement of the Executive's rights under this
Agreement, or if any legal or arbitration proceeding shall be brought in good
faith to enforce or interpret any provision contained herein, or to recover
damages for breach hereof, the Executive shall recover from the Company any
reasonable attorney's fees and necessary costs and disbursements incurred as a
result of such dispute, and prejudgment interest on any money judgment or
arbitration award obtained by the Executive calculated at the rate of interest
announced by Peoples Heritage Bank, or the successor thereto, from time to time
as its prime rate from the date that payments to him should have been made under
this Agreement.
12. Payment Obligations Absolute. The Company's obligation during and
after the Employment Period to pay the Executive the compensation and to make
the arrangements provided herein shall be absolute and unconditional and shall
not be affected by any circumstances, including, without limitation, any setoff,
counterclaim, recoupment, defense or other right which the Company may have
against him or anyone else. All amounts payable by the Company hereunder shall
be paid
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without notice or demand. Each and every payment made hereunder by the Company
shall be final and the Company will not seek to recover all or any part of such
payment from the Executive or from whomsoever may be entitled thereto, for any
reason whatever except as provided in Section 8(d) above.
13. Successors.
(a) If the Company sells, assigns, or transfers all or
substantially all of its business and assets to any Person, excluding Affiliates
of the Company, or if the Company merges into or consolidates or otherwise
combines with any Person which is a continuing or successor entity, then the
Company shall assign all of its rights, title and interest in this Agreement as
of the date of such event to the Person which is either the acquiring or
successor Company, and such Person shall assume in writing and perform from and
after the date of such written assignment all of the terms, conditions and
provisions imposed by this Agreement upon the Company. Failure of the Company to
obtain such written assignment shall be a breach of this Agreement. In case of
such assignment by the Company and of written assumption and agreement by such
Person, all further rights as well as all other obligations of the Company under
this Agreement thenceforth shall cease and terminate and thereafter the
expression "the Company" wherever used herein shall be deemed to mean such
Person or Persons.
(b) This Agreement and all rights of the Executive shall inure
to the benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries.
All amounts payable to the Executive hereunder shall be paid, in the event of
the Executive's death, to the Executive's estate, heirs and representatives.
This Agreement shall inure to the benefit of, be binding upon and be enforceable
by, any successor,
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surviving or resulting Company or other entity to which all or substantially all
of the Company's business and assets shall be transferred. This Agreement shall
not be terminated by the voluntary or involuntary dissolution of the Company.
14. Enforcement. The provisions of this Agreement shall be regarded as
divisible, and if any such provisions or any part hereof are declared invalid or
unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
15. Amendment. This Agreement may not be amended or modified at any
time except by a written instrument executed by the Company and the Executive if
such amendment or modification occurs before any Change in Control, or by the
Executive and the Company after any Change in Control.
16. Withholding. The Company shall be entitled to withhold from amounts
to be paid to the Executive hereunder any federal, state or local withholding or
other taxes, or charge which it is from time to time required to withhold. The
Company shall be entitled to rely on an opinion of counsel if any question as to
the amount or requirement of any such withholding shall arise.
17. Governing Law.
This Agreement and the rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of Maine.
18. Arbitration.
Any dispute arising out of this Agreement shall be determined by
arbitration in the State of Maine under the rules of the American Arbitration
Association then in effect and judgment upon any award pursuant to such
arbitration may be enforced in any court having jurisdiction thereof.
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19. Notice.
Notices given pursuant to this Agreement shall be in writing and shall
be deemed given when received and, if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only postage
prepaid, to the Company at:
Banknorth Group, Inc.
P.O. Box 9540
One Portland Square
Portland, ME 04112
Attn: Clerk
or if to the Executive, at the address included in the Company's records, or to
such other address as the party to be notified shall have given to the other.
20. No Waiver.
No waiver by any party at any time of any breach by another party of,
or compliance with, any condition or provision of this Agreement to be performed
by another party shall be deemed a waiver of similar or dissimilar provisions or
conditions at any time.
21. Headings. The headings herein contained are for reference only and
shall not affect the meaning or interpretation of any provision of this
Agreement.
22. Entire Agreement.
(a) This Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof. Except as provided
in paragraph (b) below, all prior correspondence and proposals (including but
not limited to summaries of proposed terms) and all prior promises,
representations, understandings, arrangements and agreements relating to such
subject matter (including without limitation the Change-in-Control Agreement, as
defined below) are merged herein and superseded hereby; provided however, that
the terms of the SERP Agreement,
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<PAGE> 22
the Retirement Plan, the Thrift Plan, the Employee Stock Ownership Plan, and any
effective applicable employment agreement shall be incorporated herein and made
a part hereof to the extent not inconsistent with the terms hereof.
(b) The Company acknowledges that it has agreed, in an
Agreement and Plan of Merger, dated as of June 1, 1999 and amended as of
December 22, 1999, between Banknorth Group, Inc. ("Banknorth") and the Company
(the "Merger Agreement"), to honor the obligations of Banknorth under the
Change-in-Control Agreement, dated as of July 16, 1998 (the "Change- in-
Control" Agreement") between Banknorth and the Executive. Notwithstanding any
provision of this Agreement or the Change-in-Control Agreement to the contrary,
(i) in the event the Executive's employment with the Company is terminated for
any reason by the Executive or by the Company, other than by the Company for
cause (as defined in the Change-in-Control Agreement), by the Executive or by
the Company pursuant to Section 7(d) of this Agreement or as a result of the
death of the Executive, within one year of the Effective Date (the "One-Year
Period"), the Executive shall (x) be entitled to receive the payments and
benefits set forth in Section 3 of the Change-in-Control Agreement (subject to
the limitation contained in Section 3.3 thereof) and not this Agreement, which
shall be terminated, and (y) comply with the requirements of Section 5 of the
Change-in-Control Agreement, and (ii) in the event the Executive's employment
with the Company is terminated by the Executive or by the Company pursuant to
Section 7(d) of this Agreement during the One-Year Period, the Executive shall
be entitled to receive the payments and benefits set forth in this Agreement and
not the Change-in-Control Agreement, which shall be terminated, it being the
express intention of the Company and the Executive that in no event shall the
Executive be entitled to receive benefits under both this Agreement and the
Change-in-Control Agreement. After the One- Year Period, and provided that the
Executive has not become entitled to receive benefits under the
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Change-in-Control Agreement, the Change-in-Control Agreement shall terminate and
be of no further force and effect without any action on the part of the Company
and the Executive, and the Executive thereafter shall be entitled to receive
such benefits as he may be entitled to receive in accordance with the terms of
this Agreement. The parties agree that this Agreement shall constitute a written
modification to the Change-in-Control Agreement which satisfies the requirements
of Section 11 thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
BANKNORTH GROUP, INC.
By: /s/ Carol L. Mitchell
--------------------------
Carol L. Mitchell
Executive Vice President,
Secretary and General Counsel
/s/ Thomas J. Pruitt
--------------------------
Thomas J. Pruitt
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<PAGE> 1
EXHIBIT 10.4
BANKNORTH GROUP, INC.
SEVERANCE AGREEMENT
This AGREEMENT, made and entered into as of the 10th day of May 2000,
by and among BANKNORTH GROUP, INC. (the "Company") and Richard E. Johnson
(the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Company in a key executive
capacity and possesses intimate knowledge of the business and affairs of the
Company; and
WHEREAS, the Company desires to ensure, insofar as possible, that it will
continue to have the benefit of the Executive's services and to protect its
confidential information and goodwill; and
WHEREAS, the Company recognizes that circumstances may arise in which a
change in the control of the Company occurs, thereby causing uncertainty of
employment without regard to the Executive's competence or past contributions;
and
WHEREAS, the Company and the Executive wish to provide reasonable security
to the Executive against changes in the Executive's relationship with the
Company in the event of such change in control;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
<PAGE> 2
1. Definitions
(a) Accrued Benefits means:
(i) All salary earned or accrued through the date the
Executive's employment is terminated;
(ii) reimbursement for any and all monies advanced in
connection with the Executive's employment for reasonable and necessary expenses
incurred by the Executive through the date the Executive's employment is
terminated;
(iii) any and all other compensation previously earned and
deferred at the election of the Executive or pursuant to any deferred
compensation plans then in effect together with any interest or desired earnings
thereon;
(iv) annual bonus, if any, accrued for a Year prior to the
Year in which employment terminates, but not yet paid to the Executive, under
any bonus or incentive compensation plan or plans in which the Executive is a
participant;
(v) a pro rata portion of the maximum bonus payable to the
Executive for the Year in which employment terminates under any bonus or
incentive compensation plan or plans in which the Executive is a participant,
determined as if the Executive had remained in employment for the full Year and
prorated based upon weeks, including partial weeks, of employment during that
Year;
(vi) all other payments and benefits to which the Executive
may be entitled under the terms of any applicable compensation arrangement or
benefit plan or program of the Company.
(b) Act means the Securities Exchange Act of 1934, as amended.
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<PAGE> 3
(c) Affiliate of any specified persons means any other person that,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under direct or indirect common control with such specified
person. For the purposes of this definition, "control" means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
(d) Annual Compensation shall mean the sum of:
(i) the Executive's annual base salary at the rate in effect
on the date of a termination of employment as described in Section 3 or in
Section 7(d) (or, in the event of a termination for Good Reason under Section
1(k)(i)(A) below, the annual base salary as in effect immediately before the
actions giving rise to Good Reason); plus
(ii) the greatest of the bonuses either paid or accrued in
either the Year of the Change in Control or the immediately preceding Year.
(e) Base Amount means an amount equal to the Executive's Annualized
Includable Compensation for the Base Period as defined in Section 280G(d)(1) and
(2) of the Code (as hereinafter defined).
(f) Cause means (i) the executive's conviction of, or plea of nolo
contendere to, a felony; or (ii) willful and intentional misconduct, willful
neglect, or gross negligence, in the performance of the Executive's duties,
which has caused a demonstrable and serious injury to the Company, monetary or
otherwise.
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<PAGE> 4
The Executive shall be given written notice that the Company intends to
terminate his employment for Cause. Such written notice shall specify the
particular acts, or failures to act, on the basis of which the decision to so
terminate employment was made.
In the case of a termination for Cause as described in Clause (ii), above,
the Executive shall be given the opportunity within 30 days of the receipt of
such notice to meet with the Board to defend such acts, or failures to act,
prior to termination. The Company may suspend the Executive's title and
authority pending such meeting, and such suspension shall not constitute "Good
Reason," as defined in subsection (k) below.
(g) Change in Control of the Company shall mean a Change in Control
of a nature that would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A promulgated under the Act or any successor
thereto, provided that without limiting the foregoing, a Change in Control of
the Company also shall mean the occurrence of any of the following events:
(i) any "person" (as defined under Section 3(a)(9) of the Act)
or "group" of persons (as provided under Rule 13d-3 of the Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 or otherwise under the Act),
directly or indirectly (including as provided in Rule 13d-3(d)(1) of the Act),
of capital stock of the Company the holders of which are entitled to vote for
the election of directors ("voting stock") representing that percentage of the
Company's then outstanding voting stock (giving effect to the deemed ownership
of securities by such person or group, as provided in Rule 13d-3(d)(1) of the
Act, but not giving effect to any such deemed ownership of securities by another
person or group) equal to or greater than twenty-five percent (25%) of all such
voting stock;
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<PAGE> 5
(ii) During any period of twenty four consecutive months,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (including for this purpose any new director whose
election or nomination for election by the Company's shareholders was approved
by a vote of at least a majority of the directors then still in office who were
directors at the beginning of such period) cease for any reason to constitute at
least a majority of the Board of Directors of the Company (excluding any Board
seat that is vacant or otherwise unoccupied).
(iii) There shall be consummated any consolidation, merger,
stock for stock exchange or similar transaction (collectively, "Merger
Transactions") involving securities of the Company in which holders of voting
stock of the Company immediately prior to such consummation own, as a group,
immediately after such consummation, voting stock of the Company (or, if the
Company does not survive the Merger Transaction, voting securities of the
corporation surviving such transaction) having less than 50% of the total voting
power in an election of directors of the Company (or such other surviving
corporation).
(h) Code means the Internal Revenue Code of 1986, including any
amendments thereto.
(i) Company Retirement Plan is defined in Section 1(r)(vi) below.
(j) Effective Date means the date this Agreement is executed by the
parties.
(k) Employment Period means a period commencing on the date of a
Change in Control of the Company and ending on the earlier of (i) the last day
of the twenty-fourth month following the month in which the Change in Control
occurs, or (ii) the Executive's Normal Retirement Date.
(l) Good Reason means:
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<PAGE> 6
(i) any breach of this Agreement by the Company, including
without limitation (A) any reduction during the employment period in the amount
of the Executive's base salary or aggregate benefits as in effect from time to
time, (B) failure to provide the Executive with the same fringe benefits that
were provided to the Executive immediately prior to a Change in Control of the
Company, or with a package of fringe benefits (including paid vacations) that,
though one or more of such benefits may vary from those in effect immediately
prior to such a Change in Control, is substantially comparable in all material
respects to such fringe benefits taken as a whole, or (C) any other breach by
the Company of its obligations contained in Section 6 below;
(ii) without the Executive's express written consent, the
assignment to the Executive of any duties which are materially inconsistent with
the Executive's positions, duties, responsibilities and status immediately prior
to the Change in Control of the Company, a material change in the Executive's
reporting responsibilities, titles or offices as an employee and as in effect
immediately prior to the Change in Control, or a significant reduction, in the
Executive's title, duties or responsibilities, or in the level of his support
services;
(iii) the relocation of the Executive's principal place of
employment, without the Executive's written consent, to a location outside the
same metropolitan area in which the Executive was employed at the time of such
Change in Control, or the imposition of any requirement that the Executive spend
more than ninety business days per year at a location other than such principal
place of employment; or
(iv) any purported termination of the Executive's employment
for Cause, Disability or Retirement which is not effected pursuant to a Notice
of Termination satisfying the requirements of paragraph (n) below.
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<PAGE> 7
Upon the occurrence of any of the events described in (i), (ii), (iii), or
(iv) above, the Executive shall give the Company written notice that such event
constitutes Good Reason, and the Company shall thereafter have thirty (30) days
in which to cure. If the Company has not cured in that time, the event shall
constitute Good Reason.
(m) Normal Retirement Date means Normal Retirement Date as
defined in the Banknorth Group, Inc. Retirement Plan.
(n) Notice of Termination shall mean a notice which shall indicate
the specific termination provision relied upon in this Agreement and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated.
(o) Person or Group means a "person" or "group," as defined in
Section 1(g)(i) hereof.
(p) Plan Year with respect to any of the Retirement Plan, the Thrift
Plan (as defined below) or the Employee Stock Ownership Plan, the "plan year" as
defined in such plan.
(q) Retirement Plan means the Banknorth Group, Inc. Retirement Plan
or any successor plan.
(r) SERP Agreement means the Supplemental Retirement Agreement
between the Executive and the Company.
(s) Year means a calendar year unless otherwise specifically
provided.
2. Term of Agreement.
This Agreement shall begin on the Effective Date and shall continue until the
third anniversary of such date, provided that, on the first anniversary of the
Effective Date, and on each succeeding
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<PAGE> 8
anniversary, the term shall be renewed for an additional period of one year
unless either party has given written notice that the term is not so renewed,
which notice must be delivered to the other party at least ninety (90) days
prior to the date of any such renewal, and further provided that if a Change in
Control of the Company occurs during such term, the term shall in all events
continue through the last day of the Employment Period. This Agreement is also
subject to earlier termination as provided in Section 3 below. All rights and
obligations hereunder shall survive to the extent necessary to the intended
enforcement thereof.
3. Termination of Employment Prior to a Change in Control.
(a) The Company and the Executive shall each retain the right to
terminate the employment of the Executive at any time prior to a Change in
Control of the Company. In the event the Executive's employment is terminated
prior to a Change in Control of the Company, this Agreement shall, except as
provided in Subsection (b) below, be terminated and of no further force and
effect, and any and all rights and obligations of the parties hereunder shall
cease.
(b) If the Executive's employment is terminated by the Company prior
to the occurrence of a Change in Control of the Company, and if it can be shown
that the Executive's termination (i) was at the direction or request of a third
party that had taken steps reasonably calculated to effect the Change in Control
of the Company thereafter, or (ii) otherwise occurred in connection with, or in
anticipation of, the Change in Control of the Company, the Executive shall have
the rights described in Section 7(d) below, as if a Change in Control of the
Company had occurred on the date immediately preceding such termination.
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<PAGE> 9
4. Employment Following a Change in Control.
If a Change in Control of the Company occurs when the Executive is
employed by the Company, the Company will continue thereafter to employ the
Executive, and the Executive will remain in the employ of the Company, during
the Employment Period, in accordance with the terms and provisions of this
Agreement.
5. Duties.
During the Employment Period, the Executive shall serve in such capacities
and positions as may be assigned by the Company consistent with the Executive's
capacities and positions on the Effective Date and shall devote the Executive's
best efforts and all of the Executive's business time, attention and skill to
the business and affairs of the Company, as such business and affairs now exist
and as they may hereafter be conducted.
6. Compensation.
During the Employment Period, the Executive shall be compensated by the
Company as follows:
(a) the Executive shall receive, at such intervals and in accordance
with such standard policies as in effect on the date of the Change in Control of
the Company, an annual base salary not less than the Executive's annual base
salary as in effect on the date of the Change in Control of the Company, subject
to adjustment as hereinafter provided;
(b) the Executive shall be included in all plans providing incentive
compensation to executives, including but not limited to bonus, deferred
compensation, annual or other incentive compensation, supplemental pension,
stock ownership, stock option, stock appreciation, stock bonus
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<PAGE> 10
and similar or comparable plans as any such plans are extended by the Company
from time to time to senior corporate officers, key employees and other
employees of comparable status;
(c) the Executive shall be reimbursed, at such intervals and in
accordance with such standard policies as may be in effect on the date of the
Change in Control of the Company, for any and all monies advanced in connection
with the Executive's employment for reasonable and necessary expenses incurred
by the Executive on behalf of the Company, including travel expenses;
(d) the Executive shall be included, to the extent eligible
thereunder, in any and all plans providing but not limited to, group life
insurance, hospitalization, disability, medical, dental, pension, profit sharing
and stock bonus plans, and shall be provided any and all other benefits and
perquisites made available to other employees of comparable status and position
at the expense of the Company on a comparable basis;
(e) the Executive shall receive annually not less than the amount of
paid vacation and not fewer than the number of paid holidays received annually
immediately prior to the Change in Control of the Company or available annually
to other employees of comparable status and position with the Company; and
(f) During the Employment Period the Board of Directors of the
Company, or an appropriate committee thereof, will consider and appraise, at
least annually, the contributions of the Executive to the Company's operating
efficiency, growth, production and profits and, in accordance with past
practice, due consideration shall be given to the upward adjustment of the
Executive's compensation rate, at least annually, commensurate with increases
generally given to other senior corporate officers and key employees and as the
scope of the Executive's duties expands.
10
<PAGE> 11
7. Termination of Employment.
Any termination by the Company or the Executive of the Executive's employment
during the Employment Period shall be communicated by written Notice of
Termination to the Executive if such notice is delivered by the Company and to
the Company if such notice is delivered by the Executive. The Notice of
Termination shall comply with the requirements of Section 1(n).
(a) Termination for Disability. If during the Employment Period, the
Executive's employment is terminated on account of the Executive's disability,
as determined under the Company's long-term disability plan (as in effect on the
date of a Change in Control of the Company), the Executive shall receive all
Accrued Benefits, if any, and shall remain eligible for all benefits as provided
pursuant to the terms of any long-term disability programs of the Company in
effect at the time of such termination.
(b) Termination on the Executive's Death. If, during the Employment
Period, the Executive's employment is terminated on account of the Executive's
death, the Executive's estate or his designated beneficiary (or beneficiaries),
as applicable, shall receive the Accrued Benefits.
(c) Voluntary Termination or Termination for Cause. If, during the
Employment Period, (i) the Executive shall terminate employment with the Company
other than for Good Reason, or (ii) the Executive's employment is terminated for
Cause, the Executive shall receive from the Company only the Accrued Benefits.
(d) Termination by the Company Without Cause or by the Executive for
Good Reason. If, during the Employment Period, the Executive's employment with
the Company is terminated by the Company other than for Cause, or by the
Executive for Good Reason, then:
11
<PAGE> 12
(i) the Executive shall be entitled to receive from the
Company the Accrued Benefits, except that, for this purpose, Accrued Benefits
shall not include any entitlement to severance under any Company severance
policy generally applicable to the Company's salaried employees;
(ii) the Executive shall receive from the Company, no less
than ten (10) days following termination of his employment, a lump sum payment
(the "Termination Payment") equal to two (2) times the Annual Compensation;
(iii) for purposes of determining the Executive's benefit
under the SERP Agreement, the Executive shall be credited with 24 additional
months of age and of service determined as follows:
(A) The additional 24 months of age and service
shall be applied for purposes of benefit accrual, vesting, eligibility for early
retirement, subsidized early retirement factors, actuarial equivalence and any
other purposes under the Retirement Plan and the SERP Agreement.
(B) Any provision under the Retirement Plan or the
SERP Agreement prohibiting the accrual of any additional benefits after the
Executive has been credited with more than a stated number of years of service
shall be disregarded.
(C) For purposes of determining the amount of the
Executive's benefit under the SERP Agreement, the reduction in respect of the
benefit paid under the Retirement Plan shall be based on the Executive's actual
Retirement Plan benefit (that is, without any additional deemed service).
12
<PAGE> 13
(D) For purposes of determining the Early
Retirement Benefit (as defined in the SERP Agreement) and other optional forms
of benefit under the SERP Agreement, if the Executive is less than fifty-five
(55) years of age, the Executive shall be deemed to be at least fifty-five (55)
years of age on the date his employment with the Company terminates,
notwithstanding the Executive's actual age, if less.
(E) the Benefit Computation Base (as defined in the
SERP Agreement) shall be determined as if it were being calculated at the end of
the 24 month period of service credited to the Executive under this Section
7(d)(iii) and as if during such 24 additional month period the Executive's
annualized compensation was the same as such compensation for (I) the Year
during which the Executive's employment is terminated, or, (II) any Year before
the Change in Control occurred, whichever is greater.
(F) Any amendment to the Retirement Plan within the
twelve (12) month period prior to the termination of the Executive's employment
shall be disregarded to the extent that the application of such amendment would
decrease the total amount of the benefits provided for in this Section
7(d)(iii).
(G) The Executive shall be entitled to a lump sum
distribution of his SERP in all events, and the Company shall not be entitled to
require payment over a longer period. If the Executive elects a lump sum payment
(i) the actuarial equivalent benefit shall be determined in accordance with the
provisions of the Retirement Plan as in effect immediately prior to the Change
in Control, or as in effect on termination of the Executive's employment,
whichever creates the greater benefit, and (ii) payment shall be made within
thirty (30) days following the later
13
<PAGE> 14
of (A) termination of the Executive's employment, or (B) the date the Executive
gives written notice of the Executive's intent to elect a lump sum.
(iv) the Executive shall be paid a lump sum amount equal to
(A) the sum of (I) the aggregate contributions and forfeitures allocated to the
Executive's account under the Banknorth Group, Inc. Profit Sharing and Employee
Stock Ownership Plan (the "Employee Stock Ownership Plan") for the Plan Year
ending immediately prior to the Change of Control, or, if different, the Plan
Year ending immediately prior to the termination of the Executive's employment,
whichever Plan Year would produce the greater aggregate value, (II) the total
aggregate value of all contributions, other than elective contributions by the
Executive and employer matching contributions relating thereto, and forfeitures
allocated to the Executive's account under the Banknorth Group, Inc. Thrift
Incentive Plan (the "Thrift Plan") for the Plan Year ending immediately prior to
the Change of Control, or, if different, the Plan Year ending immediately prior
to the termination of the Executive's employment, whichever Plan Year would
produce the greater aggregate value, and (III) (A) the matching contributions
under the Thrift Plan (or its successor) which would have been credited under
such plan on Executive's behalf, if the Executive had contributed the maximum
salary deferral contribution allowable under Section 402(g) of the Code, for the
calendar year in which he terminated employment with the Company, multiplied by
(B) two (2).
(v) all rights under any equity or long-term incentive plan
shall be fully vested;
(vi) the Executive shall (A) continue to be covered at the
expense of the Company by the same or equivalent hospital, medical, dental,
accident, disability and life insurance
14
<PAGE> 15
coverage as in effect for the Executive immediately prior to termination of his
employment, until the earlier of (I) 24 months following termination of
employment, or (II) the date the Executive has commenced new employment and has
thereby become eligible for comparable benefits; provided that, with respect to
any of the coverages described above, if such coverage is provided through an
insurance policy with an insurance company unaffiliated with the initial
Company, and if under the terms of the applicable policy, it is not possible to
provide continued coverage (including if continued coverage under the policy
would increase the Company's cost allocable to the Executive by more than 100%),
then the Company shall pay the Executive a lump sum cash amount, no later than
sixty (60) days following termination of employment an amount equal to twice the
aggregate allocable cost of such coverage as applicable immediately prior to
termination of employment, such payment to be made without any discount for
present value.
8. Certain Supplemental Payments by the Company.
(a) In the event the Executive's employment is terminated pursuant
to Section 7(d) above, and if in connection therewith it is determined that (i)
part or all of the compensation and benefits to be paid to the Executive
constitute "parachute payments" under Section 280G of the Code, and (ii) the
payment thereof will cause the Executive to incur excise tax under Section 4999
of the Code, the Company, on or before the date for payment of such excise tax,
shall pay the Executive, in lump sum, an amount (the "Gross-Up Amount") such
that, after payment of all federal, state and local income tax and any
additional excise tax under Section 4999 of the Code in respect of the Gross-Up
Amount payment, the Executive will be fully reimbursed for the amount of such
excise tax.
15
<PAGE> 16
(b) The determination of the Parachute Amount, the Base Amount and
the Gross-Up Amount, as well as any other calculations necessary to implement
this Section 8 shall be made by a nationally recognized accounting or benefits
consulting firm selected by the Executive and reasonably satisfactory to the
Company and which has not performed services, other than minor indirect or
incidental services, for either the Company or the Executive for three years
prior to the date the Consultant is retained for this purpose. The Consultant's
fee shall be paid by the Company.
(c) As promptly as practicable following such determination and the
elections hereunder, the Company shall pay to or distribute to or for the
benefit of the Executive such amounts as are then due to the Executive under
this Agreement and shall promptly pay to or distribute for the benefit of the
Executive in the future such amounts as become due to the Executive under this
Agreement.
(d) As a result of the uncertainty in the application of Section
280G of the Code at the time of an initial determination hereunder, it is
possible that payments will not have been made by the Company which should have
been made under clause (a) of this Section 8 ("Underpayment"). In the event that
there is a final determination by the Internal Revenue Service, or a final
determination by a court of competent jurisdiction, that an Underpayment has
been made and the Executive thereafter is required to make any payment of an
excise tax, income tax, any interest or penalty, the accounting or benefits
consulting firm selected under clause (b) above shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Executive.
16
<PAGE> 17
9. Further Obligations of the Executive.
(a) Confidentiality. During and following the Executive's employment
by the Company, the Executive shall hold in confidence and not directly or
indirectly disclose or use or copy or make lists of any confidential information
or proprietary data of the Company, except to the extent authorized in writing
by the Board of Directors of the Company or required by any court or
administrative agency, other than to an employee of the Company or a person to
whom disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of duties as an executive of the Company.
Confidential information shall not include any information known generally to
the public or any information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that of the
Company. All records, files, documents and materials or copies thereof, relating
to the Company's business which the Executive shall prepare, or use, or come
into contact with, shall be and remain the sole property of the Company and
shall be promptly returned to the Company upon termination of employment with
the Company.
(b) Non-Solicitation. For the period from the Effective Date until
the second anniversary of the termination of the Executive's employment, the
Executive will not, directly or indirectly, contact, approach or solicit for the
purpose of offering employment to or hiring (whether as an employee, consultant,
agent, independent contractor or otherwise) any officer of the Company, or its
affiliates, other than on the Company's behalf, without the prior written
consent of the Company.
17
<PAGE> 18
10. Equitable Relief.
Executive acknowledges and agrees that in the event of a breach by
Executive of any of the provisions of Section 9 hereof, the Company shall suffer
irreparable harm for which monetary damages alone will constitute an
insufficient remedy. Consequently, in the event of any such breach, the Company
may, in addition to other rights and remedies existing in its favor, apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof, in each case without the requirement of posting a bond
or proving actual damages.
11. Expenses and Interest.
If, after a Change in Control of the Company, a good faith dispute arises
with respect to the enforcement of the Executive's rights under this Agreement,
or if any legal or arbitration proceeding shall be brought in good faith to
enforce or interpret any provision contained herein, or to recover damages for
breach hereof, the Executive shall recover from the Company any reasonable
attorney's fees and necessary costs and disbursements incurred as a result of
such dispute, and prejudgment interest on any money judgment or arbitration
award obtained by the Executive calculated at the rate of interest announced by
Peoples Heritage Bank, or the successor thereto, from time to time as its prime
rate from the date that payments to him should have been made under this
Agreement.
12. Payment Obligations Absolute. The Company's obligation during and
after the Employment Period to pay the Executive the compensation and to make
the arrangements provided herein shall be absolute and unconditional and shall
not be affected by any circumstances, including, without limitation, any setoff,
counterclaim, recoupment, defense or other right which the Company may have
against him or anyone else. All amounts payable by the Company hereunder shall
be paid
18
<PAGE> 19
without notice or demand. Each and every payment made hereunder by the Company
shall be final and the Company will not seek to recover all or any part of such
payment from the Executive or from whomsoever may be entitled thereto, for any
reason whatever except as provided in Section 8(d) above.
13. Successors.
(a) If the Company sells, assigns, or transfers all or substantially
all of its business and assets to any Person, excluding Affiliates of the
Company, or if the Company merges into or consolidates or otherwise combines
with any Person which is a continuing or successor entity, then the Company
shall assign all of its rights, title and interest in this Agreement as of the
date of such event to the Person which is either the acquiring or successor
Company, and such Person shall assume in writing and perform from and after the
date of such written assignment all of the terms, conditions and provisions
imposed by this Agreement upon the Company. Failure of the Company to obtain
such written assignment shall be a breach of this Agreement. In case of such
assignment by the Company and of written assumption and agreement by such
Person, all further rights as well as all other obligations of the Company under
this Agreement thenceforth shall cease and terminate and thereafter the
expression "the Company" wherever used herein shall be deemed to mean such
Person or Persons.
(b) This Agreement and all rights of the Executive shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, estates, executors, administrators, heirs and beneficiaries.
All amounts payable to the Executive hereunder shall be paid, in the event of
the Executive's death, to the Executive's estate, heirs and representatives.
This Agreement shall inure to the benefit of, be binding upon and be enforceable
by, any successor,
19
<PAGE> 20
surviving or resulting Company or other entity to which all or substantially all
of the Company's business and assets shall be transferred. This Agreement shall
not be terminated by the voluntary or involuntary dissolution of the Company.
14. Enforcement. The provisions of this Agreement shall be regarded as
divisible, and if any such provisions or any part hereof are declared invalid or
unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
15. Amendment. This Agreement may not be amended or modified at any time
except by a written instrument executed by the Company and the Executive if such
amendment or modification occurs before any Change in Control, or by the
Executive and the Company after any Change in Control.
16. Withholding. The Company shall be entitled to withhold from amounts to
be paid to the Executive hereunder any federal, state or local withholding or
other taxes, or charge which it is from time to time required to withhold. The
Company shall be entitled to rely on an opinion of counsel if any question as to
the amount or requirement of any such withholding shall arise.
17. Governing Law.
This Agreement and the rights and obligations hereunder shall be governed
by and construed in accordance with the laws of the State of Maine.
18. Arbitration.
Any dispute arising out of this Agreement shall be determined by
arbitration in the State of Maine under the rules of the American Arbitration
Association then in effect and judgment upon any award pursuant to such
arbitration may be enforced in any court having jurisdiction thereof.
20
<PAGE> 21
19. Notice.
Notices given pursuant to this Agreement shall be in writing and shall be
deemed given when received and, if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only postage
prepaid, to the Company at:
Banknorth Group, Inc.
P.O. Box 9540
One Portland Square
Portland, ME 04112
Attn: Clerk
or if to the Executive, at the address included in the Company's records, or to
such other address as the party to be notified shall have given to the other.
20. No Waiver.
No waiver by any party at any time of any breach by another party of, or
compliance with, any condition or provision of this Agreement to be performed by
another party shall be deemed a waiver of similar or dissimilar provisions or
conditions at any time.
21. Headings. The headings herein contained are for reference only
and shall not affect the meaning or interpretation of any provision of this
Agreement.
22. Entire Agreement.
(a) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. Except as provided in
paragraph (b) below, all prior correspondence and proposals (including but not
limited to summaries of proposed terms) and all prior promises, representations,
understandings, arrangements and agreements relating to such subject matter
(including without limitation the Change-in-Control Agreement, as defined below)
are merged herein and superseded hereby; provided however, that the terms of the
SERP Agreement,
21
<PAGE> 22
the Retirement Plan, the Thrift Plan, the Employee Stock Ownership Plan, and any
effective applicable employment agreement shall be incorporated herein and made
a part hereof to the extent not inconsistent with the terms hereof.
(b) The Company acknowledges that it has agreed, in an
Agreement and Plan of Merger, dated as of June 1, 1999 and amended as of
December 22, 1999, between Banknorth Group, Inc. ("Banknorth") and the Company
(the "Merger Agreement"), to honor the obligations of Banknorth under the
Change-in-Control Agreement, dated as of July 10, 1998 (the "Change- in-Control"
Agreement") between Banknorth and the Executive. Notwithstanding any provision
of this Agreement or the Change-in-Control Agreement to the contrary, (i) in the
event the Executive's employment with the Company is terminated for any reason
by the Executive or by the Company, other than by the Company for cause (as
defined in the Change-in-Control Agreement), by the Executive or by the Company
pursuant to Section 7(d) of this Agreement or as a result of the death of the
Executive, within one year of the Effective Date (the "One-Year Period"), the
Executive shall (x) be entitled to receive the payments and benefits set forth
in Section 3 of the Change-in-Control Agreement (subject to the limitation
contained in Section 3.3 thereof) and not this Agreement, which shall be
terminated, and (y) comply with the requirements of Section 5 of the
Change-in-Control Agreement, and (ii) in the event the Executive's employment
with the Company is terminated by the Executive or by the Company pursuant to
Section 7(d) of this Agreement during the One-Year Period, the Executive shall
be entitled to receive the payments and benefits set forth in this Agreement and
not the Change-in-Control Agreement, which shall be terminated, it being the
express intention of the Company and the Executive that in no event shall the
Executive be entitled to receive benefits under both this Agreement and the
Change-in-Control Agreement. After the One-Year Period, and provided that the
Executive has not become entitled to receive benefits under the
22
<PAGE> 23
Change-in-Control Agreement, the Change-in-Control Agreement shall terminate and
be of no further force and effect without any action on the part of the Company
and the Executive, and the Executive thereafter shall be entitled to receive
such benefits as he may be entitled to receive in accordance with the terms of
this Agreement. The parties agree that this Agreement shall constitute a written
modification to the Change-in-Control Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
BANKNORTH GROUP, INC.
By: /s/ Carol L. Mitchell
----------------------
Carol L. Mitchell
Executive Vice President, Secretary and
General Counsel
/s/ Richard E. Johnson
----------------------
Richard E. Johnson
23
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Banknorth Group, Inc.
Burlington, Vermont:
We consent to the incorporation by reference in the Current Report on Form 8-K
of Banknorth Group, Inc. (formerly Peoples Heritage Financial Group, Inc.)
related to the consummation of the merger between Peoples Heritage Financial
Group, Inc. and Banknorth Group, Inc. of our audit report dated January 19,
2000, relating to the consolidated balance sheets of the Company as of December
31, 1999 and 1998, and the related consolidated statements of income, changes in
shareholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1999, which report appears in the 1999 Annual Report
on Form 10-K of the Company.
/s/ KPMG LLP
Albany, New York
May 10, 2000
<PAGE> 1
EXHIBIT 99.1
PRO FORMA COMBINED CONSOLIDATED FINANCIAL INFORMATION
The following unaudited pro forma combined condensed consolidated
balance sheet combines the consolidated historical balance sheets of Peoples
Heritage Financial Group, Inc. ("Peoples Heritage") and Banknorth Group, Inc.
("Banknorth"), assuming the merger of Banknorth with and into Peoples Heritage
was consummated as of December 31, 1999 on a pooling of interests accounting
basis, and the following unaudited pro forma combined condensed consolidated
statements of operations present the combined consolidated statements of
operations of Peoples Heritage and Banknorth assuming the merger was consummated
as of the beginning of the indicated periods. Certain insignificant
reclassifications have been reflected in the pro forma information to conform
statement presentations.
The effect of an expected reorganization and restructuring charge in
connection with the merger has been reflected in the pro forma combined
condensed consolidated balance sheet; however, because the reorganization and
restructuring charge is nonrecurring, it has not been reflected in the pro forma
combined condensed consolidated statements of operations. The pro forma
financial data does not reflect cost savings, revenue enhancements and other
operating synergies which are expected to be realized after the merger is
completed.
The pro forma information presented is not necessarily indicative of
the results of operations or the combined financial position that would have
resulted had the merger been consummated at December 31, 1999 or at the
beginning of the periods indicated, nor is it necessarily indicative of the
results of operations in future periods or the future financial position of the
combined entities.
The pro forma information should be read in conjunction with the
historical consolidated financial statements of Peoples Heritage and Banknorth,
including the related notes.
<PAGE> 2
PRO FORMA COMBINED CONDENSED CONSOLIDATED BALANCE SHEET
PEOPLES HERITAGE AND BANKNORTH
DECEMBER 31, 1999
(Unaudited)
(In Thousands)
<TABLE>
<CAPTION>
Peoples Pro Forma
Heritage Banknorth Adjustments Combined
-------- --------- ----------- --------
<S> <C> <C> <C> <C>
ASSETS
Cash and due from banks $ 398,759 $ 148,057 $ -- $ 546,816
Federal funds sold and other short-term investments 203,789 25,790 -- 229,579
Securities available for sale, at market value 5,161,009 1,155,022 -- 6,316,031
Securities held to maturity 541,332 15,819 -- 557,151
Loans and leases held for sale 67,220 15,098 -- 82,318
Loans and leases 6,844,659 3,009,997 -- 9,854,656
Less: Allowance for loan and lease losses 107,871 47,177 -- 155,048
------------ ------------ ------------ ------------
Net loans and leases 6,736,788 2,962,820 -- 9,699,608
Premises and equipment 141,739 50,801 -- 192,540
Goodwill and other intangibles 113,264 71,117 -- 184,381
Mortgage servicing rights 46,829 5,895 -- 52,724
Bank owned life insurance 228,423 60,360 288,783
Other assets 280,376 77,957 -- 358,333
------------ ------------ ------------ ------------
Total assets $ 13,919,528 $ 4,588,736 $ -- $ 18,508,264
============ ------------ ============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Deposits:
Interest-bearing $ 6,629,847 $ 3,085,092 $ -- $ 9,714,939
Non-interest bearing 1,311,112 510,652 -- 1,821,764
Brokered deposits 173,798 -- -- 173,798
------------ ------------ ------------ ------------
Total deposits 8,114,757 3,595,744 -- 11,710,501
------------ ------------ ------------ ------------
Borrowings from the Federal Home Loan Bank of
Boston 3,667,399 330,420 -- 3,997,819
Federal funds purchased and securities sold under
repurchase agreements 1,089,316 213,505 -- 1,302,821
Other borrowings 31,849 34,989 -- 66,838
Other liabilities 96,455 42,781 30,972(1) 170,208
------------ ------------ ------------ ------------
Total liabilities 12,999,776 4,217,439 30,972(1) 17,248,187
------------ ------------ ------------ ------------
Corporation-obligated, mandatorily redeemable
securities of subsidiary trust 68,775 30,000 -- 98,775
------------ ------------ ------------ ------------
Shareholders' equity:
Preferred Stock -- -- -- --
Common Stock:
Peoples Heritage 1,066 -- 428(2) 1,494
Banknorth -- 23,548 (23,548)(2) --
Paid-in capital 509,009 85,396 19,543(2) 613,948
Retained earnings 530,002 257,236 (30,972)(1) 756,266
Unamortized employee restricted stock -- (992) -- (992)
Unearned compensation (1,690) (69) -- (1,759)
Accumulated other comprehensive income:
Net unrealized loss on securities available for (105,149) (20,245) -- (125,394)
sale
Treasury stock, at cost (82,261) (3,577) 3,577(2) (82,261)
------------ ------------ ------------ ------------
Total shareholders' equity 850,977 341,297 (30,972)(1) 1,161,302
------------ ------------ ------------ ------------
Total liabilities and shareholders' equity $ 13,919,528 $ 4,588,736 $ -- $ 18,508,264
============ ============ ============ ============
</TABLE>
2
<PAGE> 3
Notes to Pro Forma Combined Condensed Consolidated Balanced Sheet
(1) Reflects an estimated $31 million, net of taxes, of reorganization
and restructuring charges related to the merger. Additionally, in the first
quarter of 2000, Peoples Heritage recorded $1 million, net of taxes, of special
charges related to branch closings and Banknorth recorded $2 million, net of
taxes, of special charges related to write-downs of a facility held for sale and
auto lease residuals. In the second quarter of 2000, Peoples Heritage also
expects to record approximately $10 million, net of taxes, in securities losses
to restructure the combined investment portfolio. These items are not included
in the above pro forma financial statements.
(2) Reflects the par value of the Peoples Heritage common stock to be
issued in exchange for Banknorth common stock in connection with the merger,
with related adjustments to paid-in capital. The Peoples Heritage common stock
to be issued in connection with the merger was calculated by multiplying the
number of outstanding shares of Banknorth common stock as of December 31, 1999
by the 1.825 exchange ratio and adding the number of shares of Peoples Heritage
common stock issuable or potentially issuable prior to the effective time of the
merger, based on the 1.825 exchange ratio, with respect to the Banknorth common
stock equivalents which were outstanding on such date.
3
<PAGE> 4
PRO FORMA COMBINED CONDENSED CONSOLIDATED
STATEMENT OF OPERATIONS
PEOPLES HERITAGE AND BANKNORTH
YEAR ENDED DECEMBER 31, 1999
(Unaudited)
(In Thousands, Except Share Data)
<TABLE>
<CAPTION>
Peoples Pro Forma
Heritage Banknorth Combined(1)
-------- --------- -----------
<S> <C> <C> <C>
Interest and dividend income:
Interest and fees on loans and leases $ 579,196 $ 247,369 $ 826,565
Interest and dividends on securities 328,739 72,215 400,954
------------ ------------ ------------
Total interest and dividend income 907,935 319,584 1,227,519
------------ ------------ ------------
Interest expense:
Interest on deposits 252,195 121,331 373,526
Interest on borrowed funds 209,493 20,271 229,764
------------ ------------ ------------
Total interest expense 461,688 141,602 603,290
------------ ------------ ------------
Net interest income 446,247 177,982 624,229
Provision for loan and lease losses 14,100 9,475 23,575
------------ ------------ ------------
Net interest income after provision for loan losses 432,147 168,507 600,654
------------ ------------ ------------
Noninterest income:
Customer services 53,402 18,842 72,244
Mortgage banking services 16,342 4,081 20,423
Trust and investment advisory services 19,923 19,455 39,378
Insurance commissions 20,289 -- 20,289
Net securities gains 281 374 655
Bank owned life insurance income 11,479 2,654 14,133
Bank owned life insurance claim -- 1,389 1,389
Other noninterest income 7,472 5,733 13,205
------------ ------------ ------------
129,188 52,528 181,716
------------ ------------ ------------
Noninterest expenses:
Salaries and employee benefits 163,621 67,879 231,500
Data processing 28,043 6,758 34,801
Occupancy 27,278 12,048 39,326
Equipment 21,068 10,309 31,377
Amortization of goodwill and deposit premiums 11,778 8,864 20,642
Distributions on securities of subsidiary trust 6,678 3,156 9,834
Advertising and marketing 9,456 4,716 14,172
Special charges 29,346 (1,344) 28,002
Other noninterest expenses 49,606 30,554 80,160
------------ ------------ ------------
346,874 142,940 489,814
------------ ------------ ------------
Income before income tax expense 214,461 78,095 292,556
Income tax expense 72,039 23,559 95,598
------------ ------------ ------------
Net income $ 142,422 $ 54,536 $ 196,958
============ ============ ============
Basic earnings per share $ 1.38 $ 2.33 $ 1.35
============ ============ ============
Diluted earnings per share $ 1.37 $ 2.30 $ 1.34
============ ============ ============
Average common shares - basic 102,988,690 23,435,122 145,757,788
============ ============ ============
Average common shares - diluted 104,112,038 23,734,591 147,427,667
============ ============ ============
</TABLE>
4
<PAGE> 5
PRO FORMA COMBINED CONDENSED CONSOLIDATED
STATEMENT OF OPERATIONS
PEOPLES HERITAGE AND BANKNORTH
YEAR ENDED DECEMBER 31, 1998
(Unaudited)
(In Thousands, Except Share Data)
<TABLE>
<CAPTION>
Peoples Pro Forma
Heritage Banknorth Combined(1)
-------- --------- -----------
<S> <C> <C> <C>
Interest and dividend income:
Interest and fees on loans and leases $ 669,991 $ 238,953 $ 908,944
Interest and dividends on securities 167,468 69,748 237,216
------------ ------------ ------------
Total interest and dividend income 837,459 308,701 1,146,160
------------ ------------ ------------
Interest expense:
Interest on deposits 284,935 120,481 405,416
Interest on borrowed funds 126,051 24,177 150,228
------------ ------------ ------------
Total interest expense 410,986 144,658 555,644
------------ ------------ ------------
Net interest income 426,473 164,043 590,516
Provision for loan and lease losses 14,430 9,345 23,775
------------ ------------ ------------
Net interest income after provision for loan and lease
losses 412,043 154,698 566,741
------------ ------------ ------------
Noninterest income:
Customer services 40,982 16,142 57,124
Mortgage banking services 27,202 5,492 32,694
Trust and investment advisory services 16,590 12, 838 29,428
Insurance commissions 13,006 -- 13,006
Net securities gains 5,904 519 6,423
Bank owned life insurance income 3,705 2,229 5,934
Other noninterest income 11,297 4,253 15,550
------------ ------------ ------------
118,686 41,473 160,159
------------ ------------ ------------
Noninterest expenses:
Salaries and employee benefits 164,888 65,545 230,433
Data processing 25,399 6,889 32,288
Occupancy 26,811 9,826 36,637
Equipment 20,621 9,392 30,013
Amortization of goodwill and deposit premiums 11,611 5,743 17,354
Distributions on securities of subsidiary trust 9,060 3,156 12,216
Advertising and marketing 10,805 3,870 14,675
Special charges 39,172 21,968 61,140
Other noninterest expenses 52,631 26,347 78,978
------------ ------------ ------------
360,998 152,736 513,734
------------ ------------ ------------
Income before income tax expense 169,731 43,435 213,166
Income tax expense 56,907 14,515 71,422
------------ ------------ ------------
Net income $ 112,824 $ 28,920 $ 141,744
============ ============ ============
Basic earnings per share $ 1.09 $ 1.24 $ 0.97
============ ============ ============
Diluted earnings per share $ 1.07 $ 1.22 $ 0.95
============ ============ ============
Average common shares - basic 103,637,875 23,277,560 146,119,422
============ ============ ============
Average common shares - diluted 105,767,728 23,669,540 148,964,639
============ ============ ============
</TABLE>
5
<PAGE> 6
PRO FORMA COMBINED CONDENSED CONSOLIDATED
STATEMENT OF OPERATIONS
PEOPLES HERITAGE AND BANKNORTH
YEAR ENDED DECEMBER 31, 1997
(Unaudited)
(In Thousands, Except Share Data)
<TABLE>
<CAPTION>
Peoples Pro Forma
Heritage Banknorth Combined(1)
-------- --------- -----------
<S> <C> <C> <C>
Interest and dividend income:
Interest and fees on loans and leases $ 590,000 $ 233,414 $ 823,414
Interest and dividends on securities 171,270 61,343 232,613
------------ ------------ ------------
Total interest and dividend income 761,270 294,757 1,056,027
------------ ------------ ------------
Interest expense:
Interest on deposits 261,478 109,443 370,921
Interest on borrowed funds 94,868 23,892 118,760
------------ ------------ ------------
Total interest expense 356,346 133,335 489,681
------------ ------------ ------------
Net interest income 404,924 161,422 566,346
Provision for loan and lease losses 6,391 9,372 15,763
------------ ------------ ------------
Net interest income after provision for loan
and lease losses 398,533 152,050 550,583
------------ ------------ ------------
Noninterest income:
Customer services 34,525 15,260 49,785
Mortgage banking services 28,679 4,667 33,346
Trust and investment advisory services 12,621 11,223 23,844
Insurance commissions 1,899 -- 1,899
Bank owned life insurance income 2,251 77 2,328
Net securities gains 2,571 266 2,837
Other noninterest income 11,825 6,363 18,188
------------ ------------ ------------
94,371 37,856 132,227
------------ ------------ ------------
Noninterest expenses:
Salaries and employee benefits 156,197 62,994 219,191
Data processing 19,833 7,232 27,065
Occupancy 24,741 10,259 35,000
Equipment 21,641 9,398 31,039
Amortization of goodwill and deposit premiums 8,743 5,286 14,029
Distributions on securities of subsidiary trust 8,351 2,104 10,455
Advertising and marketing 10,998 3,428 14,426
Special charges 23,559 -- 23,559
Other noninterest expenses 58,176 27,228 85,404
------------ ------------ ------------
332,239 127,929 460,168
------------ ------------ ------------
Income before income tax expense 160,665 61,977 222,642
Income tax expense 56,993 20,161 77,154
------------ ------------ ------------
Net income $ 103,672 $ 41,816 $ 145,488
============ ============ ============
Basic earnings per share $ 1.01 $ 1.76 $ 1.00
============ ============ ============
Diluted earnings per share $ 0.99 $ 1.74 $ 0.98
============ ============ ============
Average common shares - basic 102,219,049 23,705,320 145,481,258
============ ============ ============
Average common shares - diluted 104,722,008 24,042,800 148,600,118
============ ============ ============
</TABLE>
6
<PAGE> 7
Note to Pro Forma Combined Condensed Consolidated Statements of Operations
(1) Peoples Heritage expects to achieve cost savings, revenue
enhancements and other operating synergies following consummation of the merger.
The cost savings, revenue enhancements and other operating synergies are
expected to be achieved in various amounts at various times during the periods
subsequent to consummation of the merger and not ratably over or at the
beginning or end of such periods. No adjustment has been reflected in the pro
forma combined statements of operations for the anticipated cost savings,
revenue enhancements and other operating synergies.
For the reasons noted above, it should not be assumed that the
dilution in Peoples Heritage earnings per share reflected in the pro forma
combined condensed consolidated statements of operations will represent actual
dilution with respect to the merger.
7
<PAGE> 1
EXHIBIT 99.2
FOR IMMEDIATE RELEASE
FOR FURTHER INFORMATION, CONTACT:
BRIAN ARSENAULT, SVP, CORPORATE COMMUNICATIONS:
207 761-8517
PEOPLES HERITAGE COMPLETES BANKNORTH MERGER
HOLDING COMPANY TO TAKE ON BANKNORTH NAME
Portland, Maine, May 10, 2000 -- Peoples Heritage Financial Group, Inc. (NASDAQ:
PHBK) announced today that it has completed the acquisition of Banknorth Group,
Inc. (NASDAQ: BKNG) effective at the end of the day. Even though Peoples
Heritage is the surviving entity, the Company will take on the Banknorth name
and trading symbol.
"We believe the Banknorth name better reflects the Company we have become with
affiliate banks in all the New England states except Rhode Island and into
upstate New York," said William J. Ryan who continues as Chairman, President and
Chief Executive Officer. "We also think the Banknorth name better reflects the
commercial banking company we have become with strong ties to our communities.
The Company will continue to be headquartered in Portland, Maine and will have
total assets of approximately $18.4 billion.
"This merger enhances our Massachusetts and New Hampshire franchises and
provides us the second largest deposit market share in Vermont to complement our
leading market shares in Maine and New Hampshire," said Mr. Ryan. "We also gain
entry into upstate New York"
Upon the completion of related subsidiary bank mergers and conversions, the
combined Company will operate Peoples Heritage Bank in Maine, Bank of New
Hampshire, NA (including Farmington National Bank), First Massachusetts Bank, NA
(including the current Family/SIS Bank), GBT in Connecticut (the former
Glastonbury Bank & Trust), a division of First Massachusetts Bank, Evergreen
Bank, NA in New York, and Howard Bank, NA (in combination with the former
Granite Savings Bank & Trust Co.), Franklin Lamoille Bank, NA and First Vermont
Bank, NA in Vermont, and The Stratevest Group, NA, an investment management
company based in Vermont. With the exception of Peoples Heritage Bank, a
Maine-chartered bank which is in the process of converting to a national bank,
all of the combined Company's banking subsidiaries will be national banks when
the bank mergers and conversions are completed.
(end)
