Employment Agreement dated October 27, 2003 between registrant and Brian T. Moynihan, incorporated by reference to Exhibit 10(d) of registrant’s Registration Statement on Form S-4 (Registration No. 333-110924) filed on December 4, 2003

Cancellation Agreement dated October 26, 2005 between registrant and Brian T. Moynihan, incorporated by reference to Exhibit 10.1 of registrant’s Current Report on Form 8-K (File No. 1-6523) filed on October 26, 2005

 

EX-10.(D) 6 dex10d.htm EMPLOYMENT AGREEMENT, DATED AS OF OCTOBER 27, 2003

Exhibit 10(d)

 

EMPLOYMENT AGREEMENT

 

AGREEMENT by and between Bank of America Corporation, a Delaware corporation (the “Company”), and Brian T. Moynihan (the “Executive”) dated as of the 27th day of October, 2003.

 

The Company and FleetBoston Financial Corporation, a Rhode Island corporation (“Fleet”), have determined that it is in the best interests of their respective shareholders to assure that the Company will have the continued dedication of the Executive pending the merger of the Company and Fleet (the “Merger”) pursuant to the Agreement and Plan of Merger by and between the Company and Fleet, dated as of October 27th, 2003 (the “Merger Agreement”), and to provide the surviving corporation after the Merger with continuity of management. Therefore, in order to accomplish these objectives, the Executive and the Company desire to enter into this Agreement.

 

NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

 

1. Effective Date. The “Effective Date” shall mean the Effective Date of the Merger (as defined in the Merger Agreement).

 

2. Employment Period. The Company hereby agrees to employ the Executive, and the Executive hereby agrees to enter into the employ of the Company subject to the terms and conditions of this Agreement, for the period commencing on the Effective Date and ending on the third anniversary thereof (the “Employment Period”).

 

3. Terms of Employment. (a) Position and Duties. (i) During the Employment Period, (A) the Executive shall serve as President of Bank Am Capital, with such authority, duties and responsibilities as are commensurate with such title and position and as may be consistent with such title and position, (B) the Executive shall report directly to the Chief Executive Officer of the Company and (C) the Executive’s services shall be performed in Boston, Massachusetts.

 

(ii) During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive agrees to devote substantially all of his attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to the Executive hereunder, to use the Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities. During the Employment Period it shall not be a violation of this Agreement for the Executive to (A) serve on corporate, civic or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C) manage personal investments, so long as such activities do not significantly interfere with the performance of the Executive’s responsibilities as an employee of the Company in accordance with this Agreement. It is expressly understood and agreed that to the extent that any such activities have been conducted by the Executive prior to the Effective Date, the continued conduct of such activities (or the conduct of activities similar in nature and scope thereto) subsequent to the Effective Date shall not thereafter be deemed to interfere with the performance of the Executive’s responsibilities to the Company.


(b) Compensation.

 

(i) Base Salary. During the Employment Period, the Executive shall receive an annual base salary (“Annual Base Salary”) of no less than $600,000. Any increase in Annual Base Salary shall not serve to limit or reduce any other obligation to the Executive under this Agreement. Annual Base Salary shall not be reduced after any such increase and the term Annual Base Salary as utilized in this Agreement shall refer to Annual Base Salary as so increased. As used in this Agreement, the term “affiliated companies” shall include any company controlled by, controlling or under common control with the Company.

 

(ii) Annual Bonus. With respect to each fiscal year of the Company during the Employment Period, the Executive shall receive an annual bonus (“Annual Bonus”) in an amount that is commensurate with the Executive’s position and determined on a basis comparable to similarly situated executives of the Company.

 

(iii) Annual Equity Incentive Awards. With respect to each fiscal year of the Company during the Employment Period, the Executive shall receive annual equity incentive award grants (“Annual Equity Awards”) with respect to a number of shares of Company common stock (whether in the form of stock options, restricted stock shares or restricted stock units) with a value commensurate with the Executive’s position and determined on a basis and with terms and conditions, including without limitation vesting, comparable to similarly situated executives of the Company.

 

(iv) Retirement Benefits. While employed by the Company or its affiliates, the Executive shall continue to participate in the Fleet Supplemental Executive Retirement Plan as in effect immediately prior to the Effective Date, as if the Fleet tax-qualified retirement plan and related non-qualified retirement plan continued without amendment during the Employment Period.

 

(v) Initial Payment and Restricted Stock Unit Grant. On the Effective Date, the Company shall establish a deferred compensation account in the Executive’s name with an initial balance (the “Deferred Amount”) equal to 50% of the amount of the cash severance payment that the Executive would be entitled to receive pursuant to Section 6(d)(i)(B) of the Agreement between Fleet and the Executive, dated as of February 16, 2000, as amended (the “Prior Agreement”), assuming he was terminated by the Company other than for Cause under the Prior Agreement immediately after the Effective Date. For the duration of the deferral period, the Deferred Amount shall earn interest at a rate equal to the prior month 1 Year Constant Maturity Treasury Rate as determined each month by the Federal Reserve, compounded daily. On the Effective Date, the Company shall grant the Executive restricted stock units (the “Restricted Stock Units”) in respect of the number of shares of Company common stock with a value (based on the closing price of a share of Company common stock as of the Effective Date) equal to 50% of the amount of the cash severance payment that the Executive would be entitled to receive pursuant to Section 6(d)(i)(B) of the Prior Agreement, assuming he was terminated by the Company other than for Cause under the Prior Agreement immediately after the Effective Date. Upon termination of the Executive’s employment for any reason, the Deferred Amount plus accrued interest and the Restricted Stock Units shall be distributed to the Executive (or his designated beneficiary or estate as the case may be), with the Deferred Amount paid in cash and

 

2


the Restricted Stock Units settled in shares of Company common stock. Except as otherwise provided herein, the Restricted Stock Units shall have the same terms and conditions as restricted stock units granted by the Company to similarly situated executives. In the event of a change in capitalization of the Company, the number of shares subject to the Restricted Stock Units shall be adjusted on the same basis as stock awards under the Company’s stock incentive plans are adjusted generally. The obligations with respect to the Deferred Amount and the Restricted Stock Units shall survive the termination of this Agreement for any reason.

 

(vi) Other Employee Benefit Plans/ Fringe Benefits. During the Employment Period, except as otherwise expressly provided herein, the Executive shall be entitled to participate in the employee benefit, welfare benefit and other plans, practices, policies and programs that are applicable to similarly situated executives of the Company. During the Employment Period, the Executive shall be entitled to fringe benefits that are no less favorable than those to which the Executive was entitled to immediately prior to the Effective Date.

 

4. Termination of Employment. (a) Death or Disability. The Executive’s employment shall terminate automatically upon the Executive’s death during the Employment Period. If the Company determines in good faith that the Disability of the Executive has occurred during the Employment Period (pursuant to the definition of Disability set forth below), it may give to the Executive written notice in accordance with Section 11(b) of this Agreement of its intention to terminate the Executive’s employment. In such event, the Executive’s employment with the Company shall terminate effective on the 30th day after receipt of such notice by the Executive (the “Disability Effective Date”); provided that, within the 30 days after such receipt, the Executive shall not have returned to full-time performance of the Executive’s duties. For purposes of this Agreement, “Disability” shall mean the absence of the Executive from the Executive’s duties with the Company on a full-time basis for 180 consecutive business days as a result of incapacity due to mental or physical illness which is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or the Executive’s legal representative.

 

(b) Cause. The Company may terminate the Executive’s employment during the Employment Period for Cause. For purposes of this Agreement, “Cause” shall mean:

 

(i) the continued and willful failure of the Executive to perform substantially the Executive’s duties with the Company or one of its affiliates (other than any such failure resulting from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to the Executive by the Board of Directors of the Company (the “Board”) or the Chief Executive Officer of the Company which specifically identifies the manner in which the Board or Chief Executive Officer believes that the Executive has not substantially performed the Executive’s duties, or

 

(ii) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially and demonstrably injurious to the Company, or

 

(iii) conviction of a felony or guilty or nolo contendere plea by the Executive with respect thereto.

 

3


For purposes of this provision, no act or failure to act, on the part of the Executive, shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the instructions of the Chief Executive Officer or a senior officer of the Company or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company. The cessation of employment of the Executive shall not be deemed to be for Cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than two-thirds of the entire membership of the Board at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive is guilty of the conduct described in subparagraph (i) or (ii) above, and specifying the particulars thereof in detail.

 

(c) Good Reason. The Executive’s employment may be terminated by the Executive for Good Reason. For purposes of this Agreement, “Good Reason” shall mean in the absence of a written consent of the Executive:

 

(i) the assignment to the Executive of any duties inconsistent in any respect with the Executive’s position (including status, offices, titles and reporting requirements), authority, duties or responsibilities as contemplated by Section 3(a) of this Agreement, or any other action by the Company which, in the Executive’s reasonable judgment, results in a diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive;

 

(ii) any failure by the Company to comply with any of the provisions of Section 3(b) of this Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive;

 

(iii) the Company’s requiring the Executive to be based at any office or location more than 50 miles from that provided in Section 3(a)(i)(C) hereof;

 

(iv) any purported termination by the Company of the Executive’s employment otherwise than as expressly permitted by this Agreement; or

 

(v) any failure by the Company to comply with and satisfy Section 10(c) of this Agreement.

 

For purposes of this Section 4(c), any good faith determination of “Good Reason” made by the Executive shall be conclusive.

 

(d) Notice of Termination. Any termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 11(b) of this Agreement. For purposes of this

 

4


Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which date shall be not more than thirty days after the giving of such notice). The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

 

(e) Date of Termination. “Date of Termination” means (i) if the Executive’s employment is terminated by the Company for Cause, or by the Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein within 30 days of such notice, as the case may be, (ii) if the Executive’s employment is terminated by the Company other than for Cause or Disability, the Date of Termination shall be the date on which the Company notifies the Executive of such termination and (iii) if the Executive’s employment is terminated by reason of death or Disability, the Date of Termination shall be the date of death of the Executive or the Disability Effective Date, as the case may be.

 

5. Obligations of the Company upon Termination. (a) Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause or Disability or the Executive shall terminate employment for Good Reason:

 

i. the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:

 

A. the sum of (1) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the highest annual bonus paid or payable to the Executive for any of the three fiscal years (whether or not from the Company) prior to the Date of Termination (the “Highest Annual Bonus”) and (y) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2), shall be hereinafter referred to as the “Accrued Obligations”); and

 

B. the amount equal to the product of (1) two and (2) the sum of (x) the Executive’s Annual Base Salary and (y) the Highest Annual Bonus; and

 

(ii) the Annual Equity Awards and any other stock awards granted after the Effective Date shall vest immediately to the extent such awards would have vested in accordance with their terms during the two year period following the Date of Termination; and

 

5


(iii) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).

 

(b) Death. If the Executive’s employment is terminated by reason of the Executive’s death during the Employment Period, this Agreement shall terminate without further obligations to the Executive’s legal representatives under this Agreement, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits. In addition, the Annual Equity Awards and any other stock awards granted after the Effective Date shall vest immediately, and all stock options granted after the Effective Date shall be exercisable for the one-year period following the Date of Termination or such longer period as may be applicable to similarly situated executives of the Company, including the post-termination exercise period applicable to retirees to the extent the Executive satisfies the applicable eligibility criteria (taking into account all prior service with Fleet and its predecessor entities). Accrued Obligations shall be paid to the Executive’s estate or beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of Termination. With respect to the provision of Other Benefits, the term Other Benefits as utilized in this Section 5(b) shall include death benefits as in effect on the date of the Executive’s death with respect to similarly situated executives of the Company and his beneficiaries.

 

(c) Disability. If the Executive’s employment is terminated by reason of the Executive’s Disability during the Employment Period, this Agreement shall terminate without further obligations to the Executive, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits. In addition, the Annual Equity Awards and any other stock awards granted after the Effective Date shall vest immediately, and all stock options granted after the Effective Date shall be exercisable for the one-year period following the Date of Termination or such longer period as may be applicable to similarly situated executives of the Company, including the post-termination exercise period applicable to retirees to the extent the Executive satisfies the applicable eligibility criteria (taking into account all prior service with Fleet and its predecessor entities). Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the Date of Termination. With respect to the provision of Other Benefits, the term Other Benefits as utilized in this Section 5(c) shall include, and the Executive shall be entitled after the Disability Effective Date to receive, disability and other benefits as in effect at any time thereafter generally with respect to similarly situated executives of the Company.

 

(d) Cause; Other than for Good Reason. If the Executive’s employment shall be terminated for Cause or the Executive terminates his employment without Good Reason during the Employment Period, this Agreement shall terminate without further obligations to the Executive other than the obligation to pay to the Executive (i) his Annual Base Salary through the Date of Termination and (ii) Other Benefits, in each case to the extent theretofore unpaid.

 

(e) Obligations under the Prior Agreement. In the event the Executive’s employment is terminated during the Employment Period other than for Cause or Disability or

 

6


the Executive shall terminate employment for Good Reason, then the Executive shall be entitled to receive the payments and benefits that he was entitled to receive under Section 6(d)(i)(C) and (D) and Section 6(d)(ii), as if such sections of the Prior Agreement were set forth herein in their entirety.

 

6. Non-exclusivity of Rights. Except as specifically provided, nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or any of its affiliated companies and for which the Executive may qualify, nor, subject to Section 11(f), shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of its affiliated companies. Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Company or any of its affiliated companies at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement.

 

7. Full Settlement. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and, such amounts shall not be reduced whether or not the Executive obtains other employment. The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof) by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement), plus in each case interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”).

 

8. Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 8 (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 8(a), if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Executive, after taking into account the Payments and the

 

7


Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to the Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

 

(b) Subject to the provisions of Section 8(c), all determinations required to be made under this Section 8, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by KPMG or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 8, shall be paid by the Company to the Executive within five days of the later of (i) the due date for the payment of any Excise Tax, and (ii) the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 8(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm 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.

 

(c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall:

 

(i) give the Company any information reasonably requested by the Company relating to such claim,

 

(ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company,

 

8


(iii) cooperate with the Company in good faith in order effectively to contest such claim, and

 

(iv) permit the Company to participate in any proceedings relating to such claim;

 

provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 8(c), the Company shall control all proceedings taken in connection with such contest, and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that, if the Company pays such claim and directs the Executive to sue for a refund, the Company shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income in connection with such payment; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

 

(d) If, after the receipt by the Executive of a payment by the Company of an amount on the Executive’s behalf pursuant to Section 8(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 8(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after payment by the Company of an amount on the Executive’s behalf pursuant to Section 8(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then the amount of such payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

 

9. Confidential Information. (a) The Executive shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge or data relating to the Company or any of its affiliated companies, and their respective businesses, which shall have been obtained by the Executive during the Executive’s employment by the Company or any of its affiliated companies and which shall not be or become public knowledge (other than

 

9


by acts by the Executive or representatives of the Executive in violation of this Agreement). After termination of the Executive’s employment with the Company, the Executive shall not, without the prior written consent of the Company or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it. In no event shall an asserted violation of the provisions of this Section 9 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement.

 

(b) In the event of a breach or threatened breach of this Section 9, the Executive agrees that the Company shall be entitled to injunctive relief in a court of appropriate jurisdiction to remedy any such breach or threatened breach, the Executive acknowledges that damages would be inadequate and insufficient.

 

(c) Any termination of the Executive’s employment or of this Agreement shall have no effect on the continuing operation of this Section 9.

 

10. Successors. (a) This Agreement is personal to the Executive and without the prior written consent of the Company shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives.

 

(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

 

(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

 

11. Miscellaneous. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives.

 

(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

 

If to the Executive:

 

At the most recent address on file with the Company.

 

10


If to the Company:

 

Bank of America Corporate Center

100 North Tyron Street

Charlotte, North Carolina 28255

 

Attention: Executive Vice President-Personnel

 

or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee.

 

(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.

 

(d) The Company may withhold from any amounts payable under this Agreement such Federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.

 

(e) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason pursuant to Section 4(c)(i)-(v) of this Agreement, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

 

(f) From and after the Effective Date, this Agreement shall supersede any other employment, severance or change of control agreement between the parties with respect to the subject matter hereof, except as specifically otherwise provided herein. Notwithstanding anything to the contrary contained herein, including the expiration of Employment Period, any obligations under this Agreement that continue beyond the Employment Period shall survive in accordance with their terms.

 

11


IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the authorization from its Board of Directors, the Company has caused these presents to be executed in its name on its behalf, all as of the day and year first above written.

 

/s/ Brian T. Moynihan


Brian T. Moynihan

 

BANK OF AMERICA CORPORATION

By:

 

/s/ Kenneth D. Lewis

 


Name:

 

Kenneth D. Lewis

Title:

 

Chairman, President and

Chief Executive Officer

 

12

 

 

 

 

Cancellation Agreement dated October 26, 2005 between registrant and Brian T. Moynihan, incorporated by reference to Exhibit 10.1 of registrant’s Current Report on Form 8-K (File No. 1-6523) filed on October 26, 2005

EX-10.1 2 dex101.htm CANCELLATION AGREEMENT DATED OCTOBER 26, 2005

Exhibit 10.1

 

CANCELLATION AGREEMENT

 

THIS CANCELLATION AGREEMENT (the “Agreement”) is made and entered into as of the 26th day of October, 2005, by and between Brian T. Moynihan (“Executive”) and Bank of America Corporation, a Delaware corporation (the “Bank of America”).

 

Statement of Purpose

 

Executive has been employed by the Corporation pursuant to that certain Employment Agreement dated October 27, 2003 and effective as of April 1, 2004 in connection with Bank of America’s merger with FleetBoston Financial Corporation (the “Employment Agreement”). The Employment Agreement is currently scheduled to expire effective April 1, 2007. At Executive’s request, the parties have determined to cancel the Employment Agreement effective as of the date hereof in accordance with the terms of this Agreement.

 

NOW, THEREFORE, in consideration of the foregoing statement of purpose and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Cancellation of Employment Agreement. The Employment Agreement is cancelled effective as of the date hereof, provided that the provisions of Section 8 (regarding certain excise tax gross-up payments) and Section 9 (regarding protection of Bank of America’s “Confidential Information”) of the Employment Agreement shall remain in effect. In that regard, from and after the date hereof, as is the case with associates within Bank of America and its subsidiaries generally, Executive shall have the right to terminate his employment at any time with or without cause or notice, and Bank of America reserves for itself an equal right.

 

2. Payment of Deferred Amount and Restricted Stock Units. Pursuant to Section 3(b)(v) of the Employment Agreement, Bank of America established a deferred compensation account (the “Deferred Amount”) and granted Executive certain restricted stock units (the “Restricted Stock Units”) that together represented the amount of cash severance that Executive would have otherwise been entitled to receive under Executive’s prior change of control agreement with FleetBoston Financial Corporation. In accordance with the Employment Agreement, the Deferred Amount and Restricted Stock Units were fully vested and payable upon termination of employment. In connection with the cancellation of the Employment Agreement as provided hereunder, the balance of the Deferred Amount as of the date hereof and the Restricted Stock Units shall be payable to Executive on or as soon as administratively practicable after the date hereof.

 

3.

Miscellaneous.


(a) Conditions. This Agreement shall not become effective or enforceable unless and until it has been approved by the Compensation Committee of the Board of Directors of Bank of America.

 

(b) Entire Agreement. This Agreement contains the entire agreement between Bank of America and Executive with respect to the subject matter hereof, and no amendment, modification or cancellation hereof shall be effective unless the same is in writing and executed by the parties hereto (or by their respective duly authorized representatives).

 

(c) Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective heirs, executors, administrators, legal representatives, successors and assigns, if any.

 

(d) Multiple Originals. This Agreement is executed in multiple originals, each of which shall be deemed an original hereof.

 

IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.

 

BANK OF AMERICA CORPORATION

By:

 

/s/ J. Steele Alphin

 

 

Name:

 

J. Steele Alphin

 

 

Title:

 

Corporate Personnel Executive

“Corporation”

/s/ Brian T. Moynihan

Brian T. Moynihan

“Executive”

 

 

 

 

 

 

2