Mr. Thomas A. Renyi Chairman and Chief Executive Officer The Bank of New York Company, Inc. One Wall Street New York, New York 10286 Dear Tom:
Exhibit 10.1
June 25, 2007
Xx. Xxxxxx X. Renyi
Chairman and Chief Executive Officer
The Bank of New York Company, Inc.
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Chairman and Chief Executive Officer
The Bank of New York Company, Inc.
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xxx:
As you are aware, The Bank of New York Company, Inc. (together with its affiliates, the
“Company”) and Mellon Financial Corporation (together with its affiliates, “Mellon”) have entered
an agreement and plan of merger dated as of December 3, 2006 (as amended from time to time, the
“Merger Agreement”), pursuant to which the Company and Mellon will merge (the “Merger”) to form a
new corporation as of the consummation of the Merger (the date of consummation, the “Effective
Date”) to be named The Bank of New York Mellon Corporation (together with its affiliates, “Newco”).
By operation of the Merger, Newco will succeed to all of the rights and obligations of the Company
under this Agreement from and after the Effective Date.
We recognize the value you have created for the Company’s shareholders and other
constituencies throughout your career, and accordingly wish to retain your services for a period
after the consummation of the Merger. To induce you to remain with the Company through the Merger
and with Newco after the Merger, the Company offers you the position and benefits provided for in
this letter agreement (“Agreement”).
1. Position with Newco.
Effective as of the Effective Date, you will serve as Executive Chairman of Newco. You will
serve as Executive Chairman at the discretion of, and report only to, the Board of Directors of
Newco (“Board”). Your responsibilities and the Board’s expectations of you as Executive Chairman
will be consistent and commensurate with your position and will be developed with input from the
Chief Executive Officer of Newco and the Board. In addition, you will become a member of Newco’s
newly formed “Executive Committee” as of the Effective Date. You shall also hold such other
positions and have such additional responsibilities as set forth in the Merger Agreement and the
by-laws of Newco in effect as of the Effective Date.
2. Term of Service.
(a) Service Period. Your term as Executive Chairman and member of the Newco
Executive Committee will begin as of the Effective Date and will terminate on the 18 month
anniversary of the Effective Date (the “Service Period”), unless your service is terminated earlier
in accordance with Section 2(b). References to “your employment” and “your service” will refer to
your employment under this Agreement from and after the Effective Date.
(b) Involuntary Termination. The Board may terminate your employment before the
end of the Service Period if the Board decides that such early termination is in Newco’s best
interests. Termination of the Service Period under these circumstances will be known as
“Involuntary Termination.” Upon an Involuntary Termination, you agree to resign your position as
Executive Chairman and member of the Board (and from any other office with Newco to which you may
have been appointed or elected) and to elect to take retirement.
3. Compensation.
(a) Salary. You will continue to receive your annual base salary during the
Service Period. Your starting annual base salary as Executive Chairman will be $1,000,000, and may
be increased from time to time, for any reason, as the Board deems appropriate and under the same
terms and conditions applicable to other executives employed by Newco (your “Salary”).
(b) Employee Benefits. During your employment, you will be an employee of Newco
and will participate in all regular compensation and benefit programs of Newco, and you will enjoy
all entitlements and authority of the office of Executive Chairman.
(c) Annual and Long-Term Incentives. During your employment, you will be eligible
to receive annual and long-term incentives under the applicable plans of Newco and under the same
terms and conditions applicable to other Newco senior executives; provided that your annual and
long-term incentive opportunities during the Service Period shall remain at least as favorable as
that provided to you by the Company as of the date hereof even though the forms and timing of
compensation may differ from those currently provided to you or otherwise provided to other Newco
senior executives.
(d) Special Equity Incentive Grant. Effective on the last trading day of the
Company’s common stock before the Effective Date, you will receive an option to purchase 700,000
shares of Company common stock pursuant to a special, one-time equity incentive grant under the
terms and conditions set forth in the award agreement attached as Annex A (the “Option”).
4. Termination Provisions.
(a) No Reason Required for Termination. Neither you nor Newco is under any
obligation to continue your employment beyond the scheduled Service Period. In addition, you or
Newco may terminate your employment early at any time for any reason, or no reason, subject to
compliance with Section 4(f).
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(b) Retirement. If you terminate your employment at the end of the Service
Period, in addition to any other benefits to which you are entitled, you will receive, subject to
Section 6(j):
(i) Pro-Rata Bonus. Subject to Section 4(d), a pro rata annual cash bonus
for the year of your termination of employment, based on Newco’s actual performance
measured at the end of the fiscal year in which your termination of employment occurs
multiplied by a fraction, the numerator of which is the number of days you were employed
during such year of termination and the denominator of which is 365;
(ii) Normal Retirement Benefits. Commencement of normal retirement and
pension benefits under the terms of the applicable plans of the Company and/or Newco; and
(iii) Additional Benefits. Subject to Section 4(d), from the date of your
termination of employment until you reach age 80, Newco will cause you to be provided with:
(A) Office and Clerical. Suitable office space and secretarial
support at a Company office location determined by you in the New York City
metropolitan area that is not in Newco’s headquarter offices; and
(B) Use of Automobile and Driver. Access to an automobile
belonging to Newco’s executive pool of automobiles and a driver for purposes of
travel within the greater New York City metropolitan area.
For avoidance of doubt, to the extent your receipt of the additional benefits described in Sections
4(b)(iii) (the “Additional Benefits”) results in income taxable to you, you will not be entitled to
any reimbursement or other payment for any taxes payable in respect of such income.
(c) Involuntary Termination. If your employment with Newco is terminated by Newco
during the Service Period due to an Involuntary Termination other than for Cause (as defined in
Section 4(e)), you agree to resign your position as Executive Chairman and member of the Board (and
from any other office with Newco to which you may have been appointed or elected) and to elect to
take retirement in accordance with Section 2(b), and in addition to any other benefits to which you
are entitled, subject to Sections 4(d) and 6(j), you will receive:
(i) Severance Payments. Continued payment of your Salary through the end
of the Service Period, payable in accordance with Newco’s normal payroll practices (the
“Severance Payments”);
(ii) Pro-Rata Bonus. The pro-rata bonus described in Section 4(b)(i);
(iii) Special Option Treatment. Accelerated vesting and extended
exercisability of the Option to the extent provided in the applicable award agreement; and
(iv) Additional Benefits. The Additional Benefits described in Section
4(b)(iii).
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(d) Release Condition and Restrictive Covenants. In consideration of and as a
condition to your receipt of the benefits described in Section 4(b)(i) and (iii) and Sections
4(c)(i) through 4(c)(iii) above, you must execute and deliver to Newco, within 30 days of your
termination of employment, a release in the form attached as Annex B and the release must become
effective and irrevocable in accordance with its terms. In recognition of your access to the
confidential and proprietary information and valued client relationships and trade secrets of the
Company and, in the future, Newco, if you are eligible to receive Severance Payments or the
Additional Benefits, you agree that you will be subject to the following:
(i) Noncompete. During your employment and through the end of the
Restricted Period, you will not, directly or indirectly (A) hold a 3% or greater equity,
voting or profit participation interest in a Competitive Enterprise (as defined below) or
(B) render any services, whether as an employee, officer, consultant, agent or otherwise,
to a Competitive Enterprise (as defined in Section 4(e)) including, without limitation,
engaging in, directly or indirectly, or managing or supervising personnel engaged in, any
of the Relevant Activities (as defined in Section 4(e)).
(ii) Nonsolicit of Employees. During your employment and through the end
of the Restricted Period, you will not, directly or indirectly, for yourself or for any
third party, solicit, influence, encourage, induce, recruit or cause any employee of Newco
or any person who was an employee of the Company, Mellon or Newco within the 6 month period
before your termination of employment to resign from Newco or to apply for or accept
employment with any Competitive Enterprise.
(iii) Nonsolicit of Customers. During your employment and through the end
of the Restricted Period, you will not directly or indirectly (A) solicit or attempt to
solicit any of the Newco clients and/or customers for whom you, the Company, Mellon or
Newco either performed the Relevant Activities, or actively solicited work from during the
6-month period before your termination of employment, to transact business with a
Competitive Enterprise or to reduce or refrain from doing any business with Newco or (B)
otherwise interfere with or damage any relationship between Newco and any such clients or
customers.
(iv) Nondisclosure. During your employment and thereafter, you will not
at any time communicate or disclose to any unauthorized person, without the written consent
of Newco, any proprietary processes of Newco or other confidential information concerning
its business, affairs, products, suppliers or customers which, if disclosed, would have a
material adverse effect upon the business or operations of Newco. You understand, however,
that the obligations of this Section 4(c)(iv) shall not interfere with your: (a) making any
disclosure of information in any action or proceeding relating to this Agreement or as
otherwise required by law or legal process; or (b) participating, cooperating, or
testifying in any action, investigation or proceeding brought by any governmental agency or
legislative body, any self-regulatory organization, or Newco’s Legal or Compliance
Departments; provided that, to the extent permitted by law, upon receipt of any such
subpoena, court order or other legal process compelling the disclosure of any such
information, you will give prompt written notice to Newco so as to provide it an
opportunity to protect its interests in confidentiality to the fullest extent possible.
You understand that you will not be entitled to any compensation from Newco or to recover
monetary damages or any other form of personal relief from Newco for your time incurred
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in responding to or participating in any proceeding relating to any such subpoena,
court order or other legal process or otherwise in connection with any such action,
investigation or proceeding, provided however, that nothing contained in this Section shall
(1) limit your rights or limit the obligations of Newco (A) under Section 6(b)(i) of this
Agreement or (B) under the by-laws and Certificate of Incorporation of Newco, including
without limitation, your rights to, and Newco’s obligation to provide, indemnification or
(2) limit or restrict your rights and remedies against any party other than Newco or any of
its affiliates or subsidiaries. You also agree to cooperate with Newco with respect to any
past, present or future legal matters that relate to or arise out of your employment with
it or its predecessors. The obligations of this Section 4(d)(iv)) will not apply to the
extent that the aforesaid matters (a) are disclosed in circumstances where you are legally
required to do so or (b) become generally known to and available for use by the public
otherwise than by your wrongful act or omission.
(v) Nondisparagement. During your employment and thereafter, you will
not, in any manner, directly or indirectly make or publish any statement (orally or in
writing) that would libel, slander, disparage, denigrate, ridicule or criticize Newco, any
of its affiliates or any of their employees, officers or directors.
(vi) Severability; Equitable Relief. You and the Company agree that the
covenants contained herein are reasonable, that valid consideration has been and will be
received therefor and that the agreements set forth herein are the result of arm’s-length
negotiations between the parties hereto. Notwithstanding the foregoing, you and the
Company agree that if a court of competent jurisdiction determines that the length of time
or any other restriction, or portion thereof, set forth in this Section 4(d) is overly
restrictive and unenforceable, the court may reduce or modify such restrictions to those
which it deems reasonable and enforceable under the circumstances, and as so reduced or
modified, the restrictions of this Section 4(d) will remain in full force and effect. You
and the Company further agree that if a court of competent jurisdiction determines that any
provision of this Section 4(d)) is invalid or against public policy, the remaining
provisions of this Section 4(d)) and the remainder of this Agreement will not be affected
thereby, and will remain in full force and effect. Notwithstanding Section 6(i) of this
Agreement, in the event of any violation by you of this Section 4(d), Newco, in addition to
any other remedies it may have, will have the right to institute and maintain a proceeding
in a court of competent jurisdiction to compel specific performance of the provisions of
this Section 4(d) or to issue an injunction restraining any action by you in violation of
this Section 4(d), and/or to obtain other equitable and monetary relief, including without
limitation the relief described in Section 4(h).
(e) Definitions. The following definitions apply for purposes of this Agreement:
(i) “Cause” means termination upon (A) your willful and continued
failure to substantially perform your duties with Newco other than any such failure
resulting from your incapacity due to physical or mental illness after the Board delivers
to you a demand for substantial performance, which specifically identifies the manner in
which such Board believes that you have not substantially performed your duties, (B) your
willful engaging in illegal conduct or gross misconduct which is materially and
demonstrably injurious to Newco, (C) your conviction of, or plea or nolo contendere to, a
felony, (D) your refusal to cooperate in any Newco investigations after Newco has
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requested your cooperation, or (E) any other material violations of Newco’s written
Code of Conduct. For purposes of this paragraph (i), no act or failure to act on your part
will be considered “willful” unless done, or omitted to be done, by you in bad faith and
without reasonable belief that your action or omission was in, or not opposed to, Newco’s
best interest. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the advice of counsel for Newco will be
conclusively presumed to be done, or omitted to be done, by you in good faith and in
Newco’s best interests. It is also expressly understood that your attention to matters not
directly related to Newco’s business will not provide a basis for termination for Cause so
long as the either the Board or Newco has approved your engagement in such activities.
(ii) “Competitive Enterprise” means any business enterprise (A)
that is a banking institution, whether incorporated or not, a substantial portion of the
business of which consists of exercising fiduciary powers similar to those permitted to
national banks under the authority of the Comptroller of the Currency pursuant to 12.
U.S.C. 92a, that competes anywhere with any trust, safekeeping, custodial or related
activities that Newco is then engaged in or (B) holds a 5% or greater equity, voting or
profit participation interest in any enterprise that engages in such a competitive
activity.
(iii) “Relevant Activities” include any activity (A) which is
similar or substantially related to any activities in which you were engaged, in whole or
in part, at the Company or Newco; (B) for which you had direct or indirect managerial or
supervisory responsibility at the Company or Newco or (C) which calls for the application
of the same or similar specialized knowledge or skills as those used by you in your
activities with the Company and Newco.
(iv) “Restricted Period” means the period beginning on your
Termination Date and ending on the date 12 months thereafter.
(f) Notice of Termination. Any purported termination by you or Newco occurring
after the Effective Date will be communicated to the other party by a written Notice of
Termination. For purposes of this Agreement, “Notice of Termination” means a notice indicating the
specific termination provision in this Agreement relied upon and, to the extent required by Section
4(g), including a copy of any applicable resolution of the Board. If Newco terminates your
employment for Cause, and if you have not previously expressly agreed in writing to the
termination, then within 30 days after your receipt of the Notice of Termination with respect
thereto, you may notify Newco that a dispute exists concerning your termination, in which event
your termination date will be the date set either by mutual written agreement of the parties or by
the arbitrators in a proceeding as provided in Section 6(i) hereof. During the pendency of any
such dispute, Newco may place you on unpaid leave, provided that you will be permitted to continue
to participate in any BNY-Mellon group health plans in which you were a participant just before the
time the Notice of Termination is given and until the dispute is resolved in accordance with
Section 6(i).
(g) Termination only upon 3/4 Vote of Board of Directors. Notwithstanding anything
in this Agreement to the contrary, you will not be deemed to have been terminated by Newco, either
for Cause or for any reason other than Cause, unless and until there has been delivered to you a
copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board (excluding you and, if applicable, any other director
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involved in events leading to the Board’s consideration of terminating your employment for
Cause) at a meeting held for that purpose, and in the case of a proposed termination for Cause,
after reasonable notice to you and an opportunity for you, together with your counsel, to be heard
before the Board. In the case of a termination for Cause, such resolution must find that in the
good faith opinion of such Board you were guilty of the conduct set forth in any of Section
4(e)(i)(A) through (E) and specifying the particulars thereof in detail.
(h) Right to Recapture Certain Option Gains. If after the date on which you
exercise all or any part of the Option it is determined pursuant to Section 6(i) or Section
4(d)(vi) that you (A) engaged in conduct constituting Cause or (B) committed a breach of any of the
restrictive covenants set forth in Section 4(d), then any gain realized by you as a result of any
such exercise on or after the date on which such conduct or breach occurred shall be repaid by you
to BNY-Mellon upon notice from BNY-Mellon. Such gain shall be determined on a gross basis, without
reduction for any taxes incurred, as of the date of the exercise, without regard to any subsequent
change in the fair market value of BNY-Mellon shares.
5. Effect on Existing Arrangements.
(a) CIC Agreement. This Agreement supplements, and does not supersede in any way,
the Change in Control Agreement between you and the Company, dated as of July 11, 2000 (your
“Existing CIC Agreement”). You further understand that the Merger will not constitute a “Change in
Control” of the Company as defined under your Existing CIC Agreement. By operation of the Merger,
“Newco” will be substituted for the Company effective as of the Effective Date for purposes of your
Existing CIC Agreement (including but not limited to the definitions contained therein).
(b) Outstanding Equity/LTIP Grants. For the avoidance of doubt, you acknowledge
that the Merger will not constitute a “Change in Control” for purposes of the Company’s 2003 Long
Term Incentive Plan, as amended (the “LTIP”) and, accordingly, the Merger will not entitle you to
special change in control benefits with respect to your outstanding equity awards under the LTIP
(other than the Option grant pursuant to Section 3(d)). Upon a termination of your employment, the
treatment of your equity awards outstanding under the LTIP as of the date of this Agreement will be
in accordance with the terms of the LTIP and the applicable award agreements.
6. Additional Provisions.
(a) Successors; Binding Agreement.
(i) Newco will require, by agreement in form and substance reasonably
satisfactory to you, assent to the fulfillment of Newco’s obligations under this Agreement
from any Successor (as defined herein). For purposes of this Agreement, “Successor” means
any person (as such term is defined in Section 3(a)(9) and as used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) that succeeds to, or has the
practical ability to control (either immediately or with the passage of time), Newco’s
business directly, by merger or consolidation, or indirectly, by purchase of the combined
voting power of Newco’s then outstanding securities or otherwise.
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(ii) This Agreement will inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If you should die while any amount would still be
payable to you hereunder if you had continued to live, all such amounts, unless otherwise
provided herein, will be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there is no such designee, to your estate.
(iii) For purposes of this Agreement, references to “Newco” include any
corporation or other entity which is the surviving or continuing entity in respect of any
merger, consolidation or form of business combination in which Newco ceases to exist,
including but not limited to any Successor.
(b) Fees, Expenses and Interest; Mitigation.
(i) Newco will reimburse you, on a current basis, for all reasonable legal
fees and related expenses you incur in connection with this Agreement after the Merger,
including, without limitation, all such fees and expenses, if any, that you incur in (1)
contesting or disputing any termination of your employment, or which you incur in seeking
advice with respect to the matters set forth in this Agreement; (2) your seeking to obtain
or enforce any right or benefit provided by this Agreement, in each case, regardless of
whether or not your claim is upheld or ultimately successful on the merits and (3)
responding to any subpoena, court order or other legal process as described in Section
4(d)(iv). You will be required, however, to repay any such amounts to Newco to the extent
that a court issues a final and non-appealable order setting forth the determination that
the position taken by you was frivolous or advanced by you in bad faith. In addition to
the fees and expenses provided herein, you will also be paid interest on any disputed
amount ultimately paid to you at the prime rate announced by Newco from time to time from
the date payment should have been made until paid in full. Such rights are in addition to
and shall not limit any indemnification rights you may have under the Certificate of
Incorporation of Newco, the by-laws of the Company and The Bank of New York.
(ii) You will not be required to mitigate the amount of any payment Newco
becomes obligated to make to you in connection with this Agreement by seeking other
employment or otherwise.
(c) Certain Additional Payments. The parties hereto acknowledge that the Company
will not undergo a change in its ownership or effective control due to the Merger for purposes of
Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), and,
therefore, any payments made to you pursuant to this Agreement or otherwise from the Company or
Newco in connection with the Merger will not be deemed “parachute payments” as defined under
Section 280G of the Code. However, in the event of a subsequent change in the ownership or
effective control of Newco following the Merger, if any payments under this Agreement at any time
would constitute “excess parachute” payments under Section 280G Code, Newco’s obligations to you
with respect to such payments will be determined in accordance with applicable provisions of your
Existing CIC Agreement which require that you be provided with a gross-up for any excise taxes
imposed under Sections 280G and 4999 of the Code.
(d) Taxes. All payments to be made to you under this Agreement will be subject to
required withholding of federal, state and local income and employment taxes.
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(e) Survival. The respective obligations of, and benefits afforded to, Newco and
you under this Agreement will survive termination of this Agreement, except in the event that the
consummation of the Merger does not occur.
(f) Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement will be in writing and will be deemed to have been
duly given when delivered or mailed by United States registered mail, return receipt requested,
postage prepaid and addressed, to the appropriate address set forth on the first page of this
Agreement, provided that all notices to Newco will be directed to the attention of the General
Counsel of Newco, or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address will be effective only upon
receipt.
(g) Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver or discharge is agreed to in a writing signed by you
and, before the Effective Date, the Company, and after the Effective Date, Newco. Any amendment to
or modification of this Agreement after the Effective Date by Newco shall require the affirmative
vote of at least 75% of the entire Newco Board of Directors then in office. No waiver by either
party hereto at any time of any breach by the other party hereto of, or of compliance with, any
condition or provision of this Agreement to be performed by such other party will be deemed a
waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set forth in this
Agreement. The validity, interpretation, construction and performance of this Agreement will be
governed by the laws of the State of New York applied without regard to conflict of laws
principles.
(h) Validity. The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of any other provision of this Agreement,
which will remain in full force and effect. Any such invalid or unenforceable provision shall be
deemed severed from, and no longer a part of, the remaining provisions of this Agreement.
(i) Arbitration. Other than as specifically described in Section 4(d)(vi)of this
Agreement, any dispute or controversy arising under or in connection with this Agreement will be
settled exclusively by arbitration in New York City by 3 arbitrators in accordance with the rules
of the American Arbitration Association then in effect. Judgment may be entered on the
arbitrators’ award in any court having jurisdiction. Newco will bear all costs and expenses
arising in connection with any arbitration proceeding pursuant to this Section 6(i).
(j) Section 409A of the Code. If you are a “specified employee” within the
meaning of Section 409A of the Code at the time of your termination of employment, any payments to
you pursuant to Section 4(c)(i) or benefits to you pursuant to Sections 4(b)(iii) or 4(c)(iv) will
be delayed until the day after the six-month anniversary of your Termination Date, or if earlier,
the date of your death at which time you will be provided with all payments that would have been
made to you through such time but for this sentence and provided reimbursement for all benefits
that would have been provided to you through such time but for this sentence. Without limiting the
foregoing, this Agreement will be interpreted in a manner to avoid adverse consequences to you
under Section 409A of the Code. If any compensation or benefits provided by this Agreement may
result in the application of Section 409A of the Code, after giving effect to the
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first two sentences of this Section 6(j), you and Newco will agree on a modification to the
Agreement in the least restrictive manner necessary in order to, where applicable (1) exclude such
compensation from the definition of “deferred compensation” within the meaning of such Section
409A, or (2) comply with the provisions of Section 409A, other applicable provision(s) of the Code
and/or any rules, regulations or other regulatory guidance issued under such statutory provisions
and to make such modifications such that you will receive all payments and benefits hereunder in
the shortest amount of time from the date otherwise due, while no portion of any payments to you
hereunder will be subject to the excise taxes of Section 409A of the Code, in each case, without
any diminution in the value of the payments to you.
7. Conditioned on the Merger.
Of course, this Agreement is conditioned on the Merger. If the Effective Date does not occur
on or before December 31, 2007, this Agreement will terminate and have no force or effect.
* * *
If this Agreement is acceptable to you, please sign both copies of this letter indicating your
agreement to its terms, keep one signed copy of the letter for yourself and return the other signed
copy to me. This Agreement may be executed in two or more counterparts, each of which will be
deemed to be an original. A signature transmitted by facsimile will be deemed an original
signature.
We thank you for the valuable services you have performed for the Company and we look forward
to your continued contribution to the success of the Company through its transition into Newco.
| Sincerely, | ||||
| The Bank of New York Company, Inc. | ||||
| /s/ Xxxx X. Xxxxxx | ||||
| Name: Xxxx X. Xxxxxx | ||||
| Title: Vice Chairman and General Counsel | ||||
| Accepted and Agreed: | ||||||
| /s/ Xxxxxx X. Renyi | ||||||
| Xxxxxx X. Renyi | ||||||
Date: June 28, 2007 |
||||||
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Annex A
[Stock Option Agreement]
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Xxxxx X
X X X X R A L R E L E A S E
GENERAL RELEASE (this “Release”), by Xxxxxx X. Renyi (“you”) in favor of The Bank of New York
Mellon Corporation (“Company”), its subsidiaries, affiliates, and all of their officers, directors,
employees, shareholders, attorneys and agents and their predecessors, successors and assigns,
individually and in their official capacities (together, the “Released Parties”).
WHEREAS, you have been employed as Executive Chairman of the Company; and
WHEREAS, you are entitled to certain payments and benefits under your letter agreement, dated
June 25, 2007 (as the same may have been amended from time to time, the “Service Agreement”), with
the Company that are conditioned on the effectiveness of this Release.
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the
parties agree as follows:
1. General Release. You, for yourself and for your heirs, executors, administrators,
successors and assigns, knowingly and voluntarily forever waive, terminate, cancel, release and
discharge the Released Parties from and against any and all legally waivable claims, causes of
action, allegations, rights, obligations, liabilities or charges (collectively, “Claims”) that you
(or your heirs, executors, administrators, successors and assigns) have or may have, whether known
or unknown, by reason of any matter, cause or thing occurring at any time before and including the
date of this Release, including, without limitation, claims for compensation or bonuses (including,
without limitation, any claim for an award under any compensation plan or arrangement); breach of
contract; tort; wrongful, abusive, unfair, constructive or unlawful discharge or dismissal;
impairment of economic opportunity defamation; age and national origin discrimination; sexual
harassment; back pay; front pay; benefits’ attorneys’ fees; whistleblower claims; emotional
distress’ intentional infliction of emotional distress’ assault’ battery; pain and suffering;
punitive or exemplary damages; violations of the Equal Pay Act, Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1991, the Age Discrimination Employment Act of 1967 (“ADEA”), the
Americans with Disabilities Act of 1991, the Employee Retirement Income Security Act, the Older
Workers Benefit Protection Act of 1990, the Xxxxxxxx-Xxxxx Act of 2002, the Worker Adjustment and
Retraining Notification Act of 1989, the Family and Medical Leave Act of 1993, the New York State
and New York City anti-discrimination laws, including all amendments to any of the aforementioned
acts; and violations of any other federal, state, or municipal fair employment statutes or laws,
including, without limitation, violations of any other law, rule, regulation or ordinance
pertaining to employment, wages, compensation, hours worked, or any other matters related in any
way to your employment with the Company and its affiliates (and their respective predecessors) or
the termination of that employment. In addition, in consideration of the provisions of this
Release, you further agree to waive any and all rights under the laws of any jurisdiction in the
United States or any other country that limit a general release to those claims that are known or
suspected to exist in your favor as of the Effective Release Date (as defined below). You also
understand you are releasing any rights or claims concerning bonus(es) and any
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award(s) or grant(s) under any incentive compensation plan or program, except as specifically set
forth in the Service Agreement.
2. Surviving Claims: Notwithstanding anything herein to the contrary, this Release shall not:
(a) release any Claims relating to the payments and benefits set forth in the Service
Agreement;
(b) release any Claims arising after the date of this Release;
(c) limit or prohibit in any way your (or your beneficiaries’ or legal representatives’)
ability to bring an action to enforce the terms of this Release;
(d) release the Company’s obligations to you as a past, present, or future customer or client
of the Company or its affiliates;
(e) release any claim for employee benefits under plans covered by the Employee Retirement
Income Security Act of 1974, as amended, or other vested benefits to the extent that such claims
may not lawfully be waived or for any payments or benefits under any plans of the Company that have
vested according to the terms of those plans; or
(f) release any claims for indemnification in accordance with applicable laws and the
corporate governance documents of the Company including any right to contribution, in accordance
with their terms as in effect from time to time or pursuant to any applicable directors and
officers insurance policy with respect to any liability incurred by you as an officer or director
of the Company or any right you may have to obtain contribution as permitted by law in the event of
entry of judgment.
The Claims that are not released pursuant to this Section 2 are collectively referred to as the
“Surviving Claims”.
3. Additional Representations and Covenants. You represent and warrant that you have not
filed any civil action, suit, arbitration, administrative charge, or legal proceeding against any
Released Party nor have you assigned, pledged, or hypothecated as of the Effective Release Date
your claim to any person and no other person has an interest in the claims that you are releasing.
You also agree that should any person or entity file or cause to be filed any civil action, suit,
arbitration, administrative charge or other legal proceeding seeking equitable or monetary relief
concerning any claim released by you herein, you shall not seek or accept any personal relief from
or as the result of such civil action, suit, arbitration, administrative charge or other legal
proceeding.
4. Your Acknowledgements. You acknowledge and agree that you have read this Release in its
entirety and that, except for the Surviving Claims, this Release is a general release of all known
and unknown claims, including, without limitation, to rights and claims arising under ADEA. You
further acknowledge and agree that:
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(a) this Release does not release, waive or discharge any rights or claims that may arise for
actions or omissions after the date of this Release;
(b) you are entering into this Release and releasing, waiving and discharging rights or claims
only in exchange for consideration which you are not already entitled to receive;
(c) you have been advised, and are being advised by this Release, to consult with an attorney
before executing this Release, and you acknowledge that you have consulted with counsel of your
choice concerning the terms and conditions of this Release;
(d) you have been advised, and are being advised by this Release, that you have 21 days within
which to consider this Release;
(e) you are aware that this Release shall become null and void if you revoke your agreement to
this Release within 7 days following the date of execution and delivery of this Release. You may
revoke this Release at any time during such 7-day period by delivering (or causing to be delivered)
to the Company’s Director of Human Resources a written notice of your revocation of this Release.
In the event that the 7th day following the date you sign this Release falls on a
Saturday, Sunday or legal holiday, you will have until 5:00 p.m. on the next business day to
deliver your written notice of revocation. You expressly understand and agree that if you do not
sign this Release, or if you revoke it within this 7-day period, you are not entitled to, and will
not receive, any of the payments or benefits provided for under the Service Agreement that are
conditioned upon the effectiveness of this Release; and
(f) this Release shall become effective and irrevocable on the 8th day following the day on
which you have signed it, unless you have revoked it as provided in Paragraph 4(e) above
(“Effective Release Date”).
5. Additional Agreements. You acknowledge and represent that you have returned or will return
prior to the Effective Release Date , all Company-owned property, including but not limited to, all
documents and records, materials, policies, procedures, forms and documents, identification cards,
credit cards, telephone cards, files, memoranda, keys and other equipment and/or supplies in your
possession, custody or control and all copies thereof, that you have retained no such item in your
possession, custody or control, and you understand that the Company has relied upon your
representation and that the return of such property is an express condition of your Service
Agreement and this Release. You may retain all benefits-related documents pertaining to you.
| ——————————————— Xxxxxx X. Renyi |
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STATE OF
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) ) |
ss.: | ||||||
COUNTY OF
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) |
On this day of , before me personally came Xxxxxx X. Renyi to me known and known
to me to be the person described in and who executed the foregoing Release and he duly acknowledged
to me that he executed the same.
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