exv10w2



 




Exhibit 10.2


FIRST AMENDMENT TO




RETENTION AGREEMENT




     First Amendment, dated as of January 31, 2006 (the “Amendment”), to the Retention Agreement,
dated as of August 25, 2004 (as amended, the “Retention Agreement”), between TD Banknorth Inc., as
successor to Banknorth Group, Inc. (the “Company”), and David J. Ott (the “Executive”).
Capitalized terms which are not defined herein shall have the same meaning as set forth in the
Retention Agreement.



W I T N E S S E T H:




     WHEREAS, pursuant to Section 16 of the Retention Agreement, the parties to the Retention
Agreement desire to amend the Retention Agreement.



     NOW, THEREFORE, in consideration of the premises, the mutual agreements herein set forth and
such other consideration the sufficiency of which is hereby acknowledged, the Company and the
Executive hereby agree as follows:



     Section 1. Employment. Effective January 31, 2006 (the “Amendment Effective Date”),
the Executive shall cease to be Senior Executive Vice President and Chief Banking Officer of the
Company, and from and after such date the Company agrees to employ the Executive, and the Executive
agrees to be employed by, TD Banknorth, N.A. (the “Bank”), the Company’s wholly-owned banking
subsidiary, as Executive Vice President and as President of the Maine Banking Division of the Bank
upon the retirement of the current President of such division on or before June 30, 2006, in
accordance with the following provisions of this Section 1.




          A. From and after the date hereof until the termination of the Executive’s
employment by the Bank (the “Employment Period”), the Executive will be employed by the
Bank on an at-will basis. During the Employment Period the Executive shall report to
the Chief Lending Officer of the Bank.




          B. During the Employment Period, the Executive shall serve the Bank in such
capacities and positions as may be assigned by the Bank consistent with the Executive’s
capacities and positions as of February 1, 2006 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 Bank, as such business and affairs now exist and as they may
hereafter be conducted.




          C. During the Employment Period, the Executive shall be compensated by the Bank as
follows:




               (a) the Executive shall receive, at such intervals and in accordance with such
standard policies of the Bank as may be in effect from time to time, an annual base
salary equal to his current base salary, subject to such adjustments as



 









 







may be determined from time to time in the sole discretion of the Board of
Directors of the Bank or its authorized delegate;




               (b) the Executive shall be included in all plans providing incentive
compensation to other employees of comparable status and position, including but not
limited to bonus, deferred compensation, annual or other incentive compensation,
supplemental pension, stock ownership, stock option, stock appreciation, stock bonus
and similar or comparable plans as any such plans are extended by the Company or the
Bank from time to time to other employees of comparable status and position;




               (c) the Executive shall be reimbursed, at such intervals and in accordance with
such standard policies of the Bank as may be in effect from time to time, 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 Bank, including
travel expenses;




               (d) the Executive shall enjoy the fringe benefits normally afforded to other
employees of comparable status and position;




               (e) the Executive shall be allowed to participate, on the same basis as
applicable to other employees of comparable status and position, in any and all
plans, programs or arrangements covering employee benefits or fringe benefits,
including but not limited to the following: group medical insurance, hospitalization
benefits, disability benefits, medical benefits, dental benefits, pension benefits,
profit sharing and stock bonus plans, but excluding severance and any similar plans,
programs or arrangements; and




               (f) 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 Amendment Effective Date.



     Section 2. Severance Benefits.




          A. The changes in titles, responsibilities and reporting of the Executive referred
to in Section 1 constitute “Good Reason” within the meaning of Section 1(o) of the
Retention Agreement entitling the Executive to the benefits set forth below. The
Company and the Executive agree that this Amendment constitutes an adequate Notice of
Termination for purposes of the Retention Agreement.




          B. Payments to be made under Section 2C below shall be contingent on the
Executive’s prior execution and non-revocation of a mutual release substantially in the
form attached hereto as Annex A, and any payments or benefits to be made under Sections
2D-G below shall be conditioned on the Executive’s prior execution and non-revocation of
a mutual release substantially in the form attached hereto as Annex A (excluding clause
(F) of Section 1(a) thereof and clause (C) of Section 3(a)



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thereof), provided, however, that if the Company refuses to execute any such mutual
release, the Executive’s obligation to execute and not revoke the release as a
precondition to receiving severance benefits shall terminate.




          C. The Executive shall receive from the Company the Accrued Benefits, the Prorated
Bonus and the Non-Competition and Retention Amount, including a lump sum cash payment
for the additional SERP benefits described in Section 1(s)(ii) of the Retention
Agreement, each determined as of the Amendment Effective Date, which shall be paid
within ten days after the Amendment Effective Date, subject to compliance with the terms
of Section 2B above.




          D. Notwithstanding the terms of Section 7(d)(ii) of the Retention Agreement, the
pre-Merger Options shall continue to vest in accordance with their terms on and
following the Amendment Effective Date, provided that all such awards shall become
immediately vested and exercisable (to the extent not previously vested and exercisable)
upon the termination of the Executive’s employment by the Company, whether by the
Company or the Executive, for any reason following the Amendment Effective Date, other
than a termination of such employment by the Company for Cause, and shall remain
exercisable for the period provided in the applicable award agreement.




          E. If the Executive’s employment by the Company is terminated following a Change in
Control that occurs after the Amendment Effective Date, any other grants of equity-based
compensation awards to the Executive from the Company or The Toronto-Dominion Bank shall
become immediately vested and exercisable (to the extent not previously vested and
exercisable) and, if applicable, shall remain exercisable for the period provided in the
applicable award agreement.




          F. The RSUs shall vest on the Amendment Effective Date and the redemption value
thereof shall be paid out, subject to the Executive’s continued compliance with Sections
9(a), 9(b) and 10 of the Retention Agreement, as amended by this Amendment, on the third
anniversary of the Effective Date. Notwithstanding the terms of Section 7(d)(iv) of the
Retention Agreement, the Company’s 2005 Performance Based Restricted Share Unit Plan
(the “RSU Plan”) or the Amended and Restated Participation Agreement under the RSU Plan
between the Company and the Executive, the parties agree that the Redemption Value of
the RSUs for purposes of the RSU Plan shall be $2,100,000.




          G. Notwithstanding the terms of Section 7(d)(v) of the Retention Agreement,
following a termination of the Executive’s employment by the Company, whether by the
Company or the Executive, for any reason following the Amendment Effective Date, other
than a termination of such employment by the Company for Cause, the Executive shall, if
applicable, be entitled to be covered at the expense of the Company by the same or
equivalent hospital, medical, dental, accident, disability and life insurance coverage
as in effect for the Executive immediately prior to termination of the Executive’s
employment, until the earlier of (I) 36 months following



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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 Company and if under
the terms of the applicable policy, it is not possible to provide continued coverage (or
if continued coverage under such policy would increase the Company’s cost allocable to
the Executive by more than 100%), then the Company shall pay the Executive, no later
than 30 days following termination of employment, a lump sum cash 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, and provided further that if the provision of any of the benefits covered by this
Section 2G would trigger the 20% tax and interest penalties under Section 409A of the
Code, then the benefit(s) that would trigger such tax and interest penalties shall not
be provided (the “Excluded Benefits”), and in lieu of the Excluded Benefits the Company
shall pay to the Executive, in a lump sum within 30 days following termination of
employment or within 30 days after such determination should it occur after termination
of employment, a cash amount equal to the cost to the Company of providing the Excluded
Benefits.



     Section 3. Amendment to Section 11 of the Retention Agreement. Section 11 of the
Retention Agreement is hereby amended to add the following language at the end of such section:




“In addition, in the event of a breach by the Executive of any of the provisions of Sections
9(a), 9(b) and 10 hereof, the Executive acknowledges that in addition to or in lieu of the
Company seeking injunctive relief, the Company also may seek to recoup any or all of the
Non-Competition and Retention Amount paid to the Executive, including the lump sum cash
payment for the additional SERP benefits described in Section 1(s)(ii) of the Retention
Agreement, up to the full value assigned to the non-competition, non-solicitation and
confidentiality provisions of the Retention Agreement. Each of the remedies available to
the Company in the event of a breach by the Executive shall be cumulative and not mutually
exclusive.”



     Section 4. Amendments to Section 13 of the Retention Agreement. The reference to
“Retention Period” in the first sentence of Section 13 of the Retention Agreement shall be replaced
by “Employment Period.” In addition, the next to last sentence of Section 13 of the Retention
Agreement is hereby amended to read in its entirety as follows:




“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 whatsoever except as provided in Sections 8(d) and
11 above.”



     Section 5. Other Amendments to the Retention Agreement. Sections 2, 3, 4, 6(b) and 7
of the Retention Agreement are hereby deleted in their entirety and replaced by the words
“Intentionally Omitted.” Sections 9, 10 and 12 of the Retention Agreement shall continue in full



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force and effect, except that each reference therein to “Retention Period” shall be replaced
by “Employment Period.”



     Section 6. Effectiveness. This Amendment shall be deemed effective as of the date
first above written, as if executed on such date. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the Retention Agreement
(including without limitation Section 11, as amended above), all of which are ratified and affirmed
in all respects and shall continue in full force and effect and shall be otherwise unaffected.



     Section 7. Governing Law. This Amendment and the rights and obligations hereunder
shall be governed by and construed in accordance with the laws of the State of Maine.



     Section 8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall for all purposes be deemed an original, and all of which together
shall constitute but one and the same instrument.



     IN WITNESS WHEREOF, the Company and the Executive have duly executed this Amendment as of the
day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	TD BANKNORTH INC.	 	 
	Attest:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Carol L. Mitchell	 	 	 	By:	 	/s/ William J. Ryan	 	 
	 	 	 	 	 	 	 	 	 
	Name: Carol L. Mitchell	 	 	 	 	 	Name: William J. Ryan	 	 
	Title:   Senior Executive Vice President,	 	 	 	 	 	Title:   Chairman, President	 	 
	 

	 	General Counsel and Secretary
	 	 	 	 	 	and Chief Executive Officer
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Attest:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Carol L. Mitchell	 	 	 	 	 	/s/ David J. Ott	 	 
	 	 	 	 	 	 	 	 	 
	Name: Carol L. Mitchell	 	 	 	 	 	David J. Ott	 	 






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ANNEX A




GENERAL RELEASE




          1. Release of Claims by Executive.



          (a) In consideration of the payments and benefits to be provided to David J. Ott
(“Executive”) pursuant to the retention agreement, dated as of August 25, 2004, as amended
by the First Amendment thereto, dated as of January 31, 2006, to which Executive and TD Banknorth
Inc., a Delaware corporation and successor to Banknorth Group, Inc., a Maine corporation (the
“Company”), are parties (as amended, the “Retention Agreement”), the sufficiency of
which is acknowledged hereby, Executive, with the intention of binding himself and his heirs,
executors, administrators and assigns, does hereby release, remise, acquit and forever discharge
the Company, Toronto-Dominion Bank (“TD”) and each of their subsidiaries and affiliates (the
“Company Affiliated Group”), their present and former officers, directors, executives,
agents, attorneys and employees, and the successors, predecessors and assigns of each of the
foregoing (collectively, the “Company Released Parties”), of and from any and all claims,
actions, causes of action, complaints, charges, demands, rights, damages, debts, sums of money,
accounts, financial obligations, suits, expenses, attorneys’ fees and liabilities of whatever kind
or nature in law, equity or otherwise, whether accrued, absolute, contingent, unliquidated or
otherwise and whether now known or unknown, suspected or unsuspected, which Executive, individually
or as a member of a class, now has, owns or holds, or has at any time heretofore had, owned or
held, against any Company Released Party in any capacity, including, without limitation, any and
all claims (i) arising out of or in any way connected with Executive’s service to any member of the
Company Affiliated Group (or the predecessors thereof) in any capacity, or the termination of such
service in any such capacity, (ii) for severance or vacation benefits, unpaid wages, salary or
incentive payments, (iii) for breach of contract, wrongful discharge, impairment of economic
opportunity, defamation, intentional infliction of emotional harm or other tort, (iv) for any
violation of applicable state and local labor and employment laws (including, without limitation,
all laws concerning unlawful and unfair labor and employment practices) and (v) for employment
discrimination under any applicable federal, state or local statute, provision, order or
regulation, and including, without limitation, any claim under Title VII of the Civil Rights Act of
1964 (“Title VII”), the Civil Rights Act of 1988, the Fair Labor Standards Act, the
Americans with Disabilities Act (“ADA”), the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), the Age Discrimination in Employment Act (“ADEA”) and
any similar or analogous state statute, excepting only:




                         (A) the rights of Executive under the Retention Agreement;




                         (B) the rights of Executive (i) relating to any stock options and other equity-based awards
held by Executive as of the date hereof (collectively, the “Equity Arrangements”) and (ii)
as a stockholder of the Company or its affiliates;




                         (C) the right of Executive to receive COBRA continuation coverage in accordance with
applicable law;




 









 








                         (D) rights to indemnification Executive may have under (i) applicable corporate law, (ii) the
by-laws or certificate of incorporation of any Company Released Party, (iii) any other agreement
between Executive and a Company Released Party, (iv) as an insured under any director’s and
officer’s liability insurance policy now or previously in force or (v) Section 6.7 of the Agreement
and Plan of Merger, dated as of August 25, 2004, among the Company, Berlin Delaware, Inc., TD and
Berlin Merger Co.;




                         (E) claims for benefits under any health, disability, retirement, life insurance or other,
similar “employee benefit plan” (within the meaning of Section 3(3) of ERISA) of the Company
Affiliated Group (the “Company Benefit Plans”); and




                         (F) any claims arising out of the Executive’s employment by the Company following January 31,
2006.




          (b) Executive acknowledges and agrees that the release of claims set forth in this Section 1
is not to be construed in any way as an admission of any liability whatsoever by any Company
Released Party, with any such liability being expressly denied.




          (c) The release of claims set forth in this Section 1 applies to any relief no matter how
called, including, without limitation, wages, back pay, front pay, compensatory damages, liquidated
damages, punitive damages, damages for pain or suffering, costs, and attorney’s fees and expenses.




          (d) Executive specifically acknowledges that his acceptance of the terms of the release of
claims set forth in this Section 1 is, among other things, a specific waiver of his rights, claims
and causes of action under Title VII, ADEA, ADA and any state or local law or regulation in respect
of discrimination of any kind.




          (e) Executive shall have a period of 21 days to consider whether to execute this General
Release. To the extent Executive has executed this General Release within less than twenty-one (21)
days after its delivery to him, the Executive hereby acknowledges that his decision to execute this
General Release prior to the expiration of such 21 day period was entirely voluntary. If Executive
accepts the terms hereof and executes this General Release, he may thereafter, for a period of 7
days following (and not including) the date of execution, revoke this General Release. If no such
revocation occurs, this General Release shall become irrevocable in its entirety, and binding and
enforceable against Executive, on the day next following the day on which the foregoing seven-day
period has elapsed. Any revocation of this General Release shall be deemed for all purposes a
revocation of this General Release in its entirety.




          (f) Executive acknowledges and agrees that he has not, with respect to any transaction or
state of facts existing prior to the date hereof, filed any complaints, charges or lawsuits against
any Company Released Party with any governmental agency, court or tribunal.




          (g) Executive acknowledges that (i) he is executing this General Release voluntarily and
without any duress or undue influence by any of the parties hereto, (ii) he has been advised to
consult with an attorney of his choice and has been given an opportunity to do


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so, and (iii) he has carefully read this General Release and understands its contents and
consequences.




          2. Effect of Unenforceability of Release. In addition to any other remedy available
to the Company hereunder, in the event that, as a result of a challenge brought by an Employee
Released Party (as defined below), the release of claims set forth in Section 1 becomes null and
void or is otherwise determined not to be enforceable, then the Company’s obligation to make any
additional payments or to provide any additional benefits under the Retention Agreement shall
immediately cease to be of any force and effect, and Executive shall promptly return to the Company
any payments or benefits the provision of which by the Company was conditioned on the
enforceability of this General Release.




          3. Release of Claims by the Company and TD.




          (a) The Company and TD, with the intention of binding themselves and their subsidiaries,
affiliates, predecessors and successors and their directors and officers (collectively, the
“Releasing Entities”), do hereby release, remise, acquit and forever discharge Executive and his
heirs, estate, executors, administrators and assigns (collectively, the “Employee Released
Parties”), of and from any and all claims, actions, causes of action, complaints, charges,
demands, rights, damages, debts, sums of money, accounts, financial obligations, suits, expenses,
attorneys’ fees and liabilities of whatever kind or nature in law, equity or otherwise, whether
accrued, absolute, contingent, unliquidated or otherwise and whether now known or unknown,
suspected or unsuspected, which the Company, TD and their subsidiaries, affiliates, predecessors
and successors, individually or as a member of a class, now have, own or hold, or have at any time
heretofore had, owned or held, against any Employee Released Party, excepting only:




               (A) rights of the Releasing Entities under this General Release, the Retention Agreement, the
Equity Arrangements and the Company Benefit Plans;



               (B) rights of the Releasing Entities arising by reason of Executive having committed a crime
or an act or omission to act which constitutes fraud, willful misconduct or gross negligence; and



               (C) any claims arising out of the Executive’s employment by the Company following January 31,
2006.



          (b) The Releasing Entities acknowledge and agree that the release of claims set forth in this
Section 3 is not to be construed in any way as an admission of any liability whatsoever by any
Employee Released Party, with any such liability being expressly denied.



          (c) The release of claims set forth in this Section 3 applies to any relief no matter how
called, including, without limitation, compensatory damages, liquidated damages, punitive damages,
damages for pain or suffering, costs, and attorney’s fees and expenses.




          (d) Nothing herein shall be deemed, nor does anything contained herein purport, to be a
waiver of any right or claim or cause of action which by law the Company is not permitted to waive.




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          (e) The Company acknowledges and agrees that it has not, with respect to any transaction or
state of facts existing prior to the date hereof, filed any complaints, charges or lawsuits against
any Employee Released Party with any governmental agency, court or tribunal.




          4. Nondisparagement. Executive agrees not to make any disparaging statements about
the Company Released Parties or the Company Affiliated Group’s business practices, operations or
personnel policies and practices to any of the Company Affiliated Group’s customers, clients,
competitors, suppliers, directors, consultants, employees, former employees, or the press or other
media in any country. Similarly, the Company agrees to instruct its executive officers and
directors not to make any disparaging statement about the Executive or Executive’s performance of
his duties and responsibilities while employed with the Company Affiliated Group to any of the
Company Affiliated Group’s customers, client’s, competitors, suppliers, directors, consultants,
employees, former employees or the press or other media in any country.




          5. Counterparts. This General Release may be executed in counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute one and the same
instrument.




          6. Successors. This General Release shall be binding upon any and all successors and
assigns of Executive and the Company.




          7. Governing Law. Except for issues or matters as to which federal law is applicable,
this General Release shall be construed in accordance with and governed by the laws of the State of
Maine.




          IN WITNESS WHEREOF, this General Release has been signed by or on behalf of each of the
Company and the Executive, as of the date set forth below.




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	TD BANKNORTH INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ David J. Ott

	 	 	 	/s/ Carol L. Mitchell 	 	 	 	 
	 	 	 	 	 	 	 
	David J. Ott	 	 	 	By: Carol L. Mitchell	 	 	 	 
	 

	 	 	 	 	 	Its: Senior Vice President, General
Counsel and Secretary	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	January 31, 2006
	 	 	 	Dated:
	 	 January 31, 2006	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	THE TORONTO-DOMINION BANK	 	 
	 
	 
	 	 	 	 	 	/s/ William J. Ryan 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By: William J. Ryan	 	 	 	 
	 

	 	 	 	 	 	Its: Vice Chairman	 	 	 	 
	 

	 	 	 	 	 	Dated:
	 	January 31, 2006	 	 
	 	 	 	 	 	 	 	 	 	 	 






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