EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of July 22, 1999 (the
"Effective Date"), by and among RINET Company, Inc., a Massachusetts corporation
(the "Employer"), Boston Private Financial Holdings, Inc., a Massachusetts
corporation ("BPFH") and Xxxxxxx X. Xxxxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, on July 22, 0000 Xxxxxxxx, XXXX, Xxxxxx Private Financial
Planning, Inc., a Massachusetts corporation and wholly-owned subsidiary of BPFH
("BPFP") and all the stockholders of Employer (including Executive) entered into
an Agreement and Plan of Merger (the "Plan of Merger") whereby among other
things, (a) BPFP will merge with and into Employer, (b) all shares of Class A
Common Stock, $.01 par value per share, of Employer and all shares of Class B
Common Stock, $.01 par value per share, of Employer owned by the stockholders of
Employer will at the Effective Time (as defined in the Plan of Merger) be
converted into shares of common stock, $1.00 par value per share, of BPFH (the
"BPFH Common Stock") as set forth in the Plan of Merger and (c) Employer will
continue to exist as a wholly owned subsidiary of BPFH;
WHEREAS, BPFH has adopted the BPFH Long Term Incentive Compensation
Plan, providing, among other things, for the grant to employees of BPFH or
certain of its affiliates options to purchase from shares of BPFH Common Stock;
WHEREAS, the Executive is a stockholder of the Employer and will
receive substantial economic and other benefits if the transactions contemplated
by the Plan of Merger are consummated;
WHEREAS, it is a condition precedent to the obligation of BPFH to
consummate the transactions contemplated by the Plan of Merger that the
Executive enter into and on the Closing Date (as defined in the Plan of Merger)
be bound by an employment agreement with the Employer in the form hereof,
supplanting any previous employment agreement or arrangement that Executive may
have had with the Employer
WHEREAS, the Employer recognizes the importance of the Executive to the
Employer and to the Employer's ability to retain the client relationships
referred to in the Plan of Merger, and desire that the Employer employ the
Executive for the period of employment and upon and subject to the terms herein
provided;
WHEREAS, the Employer wishes to be assured that the Executive will not
solicit any of the Employer's or any of its affiliated and related entities'
Customers (as hereinafter defined) and will not, by such solicitation, damage
the Employer's goodwill among its clients and the general public; and
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WHEREAS, the Executive desires to be employed by the Employer and to
refrain from competing with the Employer or soliciting its clients for the
periods and upon and subject to the terms herein provided.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the Employer and the Executive agree as follows:
1. EMPLOYMENT/EFFECTIVE DATE.
(a) The Employer agrees to employ the Executive and the
Executive agrees to be employed by the Employer on the terms and
conditions set forth in this Agreement.
(b) This Agreement shall take effect as of the Effective Date
(as defined in the Plan of Merger), PROVIDED THAT if the Plan of Merger
terminates or otherwise fails to close in accordance with its terms,
this Agreement shall automatically, and without any further action on
the part of any parties hereto, terminate and be of no further force or
effect.
2. CAPACITY. The Executive shall initially serve the Employer as
President and Chief Executive Officer, subject to election by the Board of
Directors of the Employer (the "Board of Directors"). The Executive shall also
serve the Employer in such other or additional offices as the Executive may be
requested to serve by the Board of Directors. In such capacity or capacities,
the Executive shall perform such services and duties in connection with the
business, affairs and operations of the Employer as may be assigned or delegated
to the Executive from time to time by or under the authority of the Board of
Directors.
3. TERM. Subject to the provisions of Section 6, the term of employment
pursuant to this Agreement (the "Term") shall be six (6) years from the
Effective Date and shall be renewed automatically for periods of one (1) year
commencing at the sixth (6th) anniversary of the Effective Date and on each
subsequent anniversary thereafter, unless either the Executive or the Employer
gives written notice to the other not less than ninety (90) days prior to the
date of any such anniversary of such party's election not to extend the Term.
4. COMPENSATION AND BENEFITS. The regular compensation and benefits
payable to the Executive under this Agreement shall be as follows:
(a) SALARY. For all services rendered by the Executive under
this Agreement, the Employer shall pay the Executive a salary (the
"Salary") at the annual rate of Two Hundred Fifty-Eight Thousand Five
Hundred Dollars ($258,500.00), subject to increase (i) in the
discretion of the Chief Executive Officer of BPFH for annual cost of
living adjustments and (ii) from time to time in the discretion of the
Board of Directors or the Compensation Committee of the Board of
Directors (the
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"Compensation Committee"). The Salary shall be payable in periodic
installments in accordance with the Employer's usual practice for its
senior executives.
(b) ANNUAL STOCK OPTION POOL. As additional compensation for
Executive's performance of services under this Employment Agreement,
Executive shall be entitled to participate in the stock option pool
(the "Annual Stock Option Pool") established by BPFH for the benefit of
certain employees of Employer, the terms of which are attached hereto
as EXHIBIT A.
(c) BONUS POOL. As additional compensation for Executive's
performance of services under this Employment Agreement, Executive
shall be entitled to participate in the Bonus Pool (the "Bonus Pool")
established by Employer for the benefit of its executive officers, the
terms of which are attached hereto as EXHIBIT B.
(d) REGULAR BENEFITS. The Executive shall also be entitled to
participate in any employee benefit plans, medical insurance plans,
life insurance plans, disability income plans, retirement plans,
vacation plans, expense reimbursement plans and other benefit plans
(collectively referred to as "Benefit Plans") which the Employer may
from time to time have in effect for all or most of its senior
executives provided, that such Benefit Plans shall be, in the
aggregate, comparable to those Benefit Plans that were offered to
senior executives of RCI as of July 22, 1999. Such participation shall
be subject to the terms of the applicable plan documents, generally
applicable policies of the Employer, applicable law and the discretion
of the Board of Directors, the Compensation Committee or any
administrative or other committee provided for in or contemplated by
any such plan. Nothing contained in this Agreement shall be construed
to create any obligation on the part of the Employer to establish any
such plan or to maintain the effectiveness of any such plan which may
be in effect from time to time.
(e) TAXATION OF PAYMENTS AND BENEFITS. The Employer shall
undertake to make deductions, withholdings and tax reports with respect
to payments and benefits under this Agreement to the extent that it
reasonably and in good faith believes that it is required to make such
deductions, withholdings and tax reports. Any payments under this
Agreement shall be reduced by any such deductions or withholdings.
Nothing in this Agreement shall be construed to require the Employer to
make any payments to compensate the Executive for any adverse tax
effect associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.
(f) EXPENSES. During the term of this Agreement, the Company
shall reimburse the Executive for all reasonable travel and other
business expenses incurred by the Executive in the performance of his
or her duties and responsibilities, subject to such reasonable
requirements with respect to substantiation and documentation as may be
specified by the Company.
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(f) EXCLUSIVITY OF SALARY AND BENEFITS. The Executive shall
not be entitled to any payments or benefits other than those provided
under this Agreement.
5. EXTENT OF SERVICE. During the Executive's employment under this
Agreement, the Executive shall, subject to the direction and supervision of the
Board of Directors, devote the Executive's full business time, best efforts and
business judgment, skill and knowledge to the advancement of the Employer's
interests and to the discharge of the Executive's duties and responsibilities
under this Agreement. The Executive shall not engage in any other business
activity, except as may be approved by the Board of Directors; PROVIDED THAT
nothing in this Agreement shall be construed as preventing the Executive from:
(a) investing the Executive's assets in any company or other
entity in a manner not prohibited by Section 5.11 of the Plan of Merger
and in such form or manner as shall not require any material activities
on the Executive's part in connection with the operations or affairs of
the companies or other entities in which such investments are made; or
(b) engaging in religious, charitable or other community or
non-profit activities that do not impair the Executive's ability to
fulfill the Executive's duties and responsibilities under this
Agreement.
6. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the provisions
of Section 3, the Executive's employment under this Agreement shall terminate
under the following circumstances set forth in this Section 6.
(a) TERMINATION BY THE EMPLOYER FOR CAUSE. The Executive's
employment under this Agreement may be terminated for cause without
further liability on the part of the Employer effective immediately
upon a vote of the Board of Directors and written notice to the
Executive. Only the following shall constitute "cause" for such
termination:
(i) dishonest statements or acts of the Executive
with respect to a material matter concerning the Employer or
any affiliate of the Employer;
(ii) the commission by or indictment of the Executive
for (A) a felony or (B) any misdemeanor involving moral
turpitude, deceit, dishonesty or fraud ("indictment," for
these purposes, meaning an indictment, probable cause hearing
or any other procedure pursuant to which an initial
determination of probable or reasonable cause with respect to
such offense is made);
(iii) failure to perform, as determined by a court of
law, a substantial portion of the Executive's duties and
responsibilities assigned or delegated under this Agreement,
which failure continues after written notice given to the
Executive by the Board of Directors;
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(iv) gross negligence, willful misconduct or
insubordination of the Executive with respect to the Employer
or any affiliate of the Employer; or
(v) material breach by the Executive of any of the
Executive's obligations under this Agreement.
(b) TERMINATION BY THE EXECUTIVE. The Executive's employment
under this Agreement may be terminated by the Executive by written
notice to the Board of Directors at least thirty (30) days prior to
such termination.
(c) TERMINATION BY THE EMPLOYER WITHOUT CAUSE. Subject to the
payment of Termination Benefits pursuant to Section 6(d), the
Executive's employment under this Agreement may be terminated by the
Employer without cause ("Termination Without Cause") upon written
notice to the Executive by a vote of the Board of Directors.
(d) CERTAIN TERMINATION BENEFITS. Unless otherwise
specifically provided in this Agreement or otherwise required by law,
all compensation and benefits payable to the Executive under this
Agreement shall terminate on the date of termination of the Executive's
employment under this Agreement. Notwithstanding the foregoing, in the
event of termination of the Executive's employment with the Employer
pursuant to Section 6(c) above, the Employer shall provide to the
Executive the following termination benefits ("Termination Benefits"):
(i) continuation of the Executive's Salary at the
rate then in effect pursuant to Section 4(a); and
(ii) continuation of group health plan benefits to
the extent authorized by and consistent with 29 U.S.C. ss.
1161 ET Seq. (commonly known as "COBRA"), with the cost of the
regular premium for such benefits shared in the same relative
proportion by the Employer and the Executive as in effect on
the date of termination.
The Termination Benefits set forth in (i) and (ii) above shall continue
effective until the earlier of (A) the expiration of the Term or (B)
twelve (12) months after the date of termination; PROVIDED THAT in the
event that the Executive commences any employment or self-employment
during the period during which the Executive is entitled to receive
Termination Benefits (the "Termination Benefits Period"), as of the
date of commencement of such employment or self-employment, the
remaining amount of Salary due pursuant to Section 6(d)(i) for the
period from the commencement of such employment or self-employment to
the end of the Termination Benefits Period shall be reduced by one-half
and the payments provided under Section 6(d)(ii) shall cease entirely.
The Employer's liability for Salary continuation pursuant to Section
6(d)(i) shall be reduced by the amount of any severance pay due or
otherwise paid to the Executive pursuant to any severance pay plan or
stay bonus plan of the Employer.
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Notwithstanding the foregoing, nothing in this Section 6(d) shall be
construed to affect the Executive's right to receive COBRA continuation
entirely at the Executive's own cost to the extent that the Executive
may continue to be entitled to COBRA continuation after the Executive's
right to cost sharing under Section 6(d)(ii) ceases. The Executive
shall be obligated to give prompt notice of the date of commencement of
any employment or self-employment during the Termination Benefits
Period and shall respond promptly to any reasonable inquiries
concerning any employment or self-employment in which the Executive
engages during the Termination Benefits Period.
(e) DISABILITY. If the Executive shall be disabled so as to
be unable to perform the essential functions of the Executive's then
existing position or positions under this Agreement with or without
reasonable accommodation, or the Board of Directors may remove the
Executive from any responsibilities and/or reassign the Executive to
another position with the Employer for the remainder of the Term or
during the period of such disability. Notwithstanding any such
removal or reassignment, the Executive shall continue to receive the
Executive's full Salary (less any disability pay or sick pay
benefits to which the Executive may be entitled under the Employer's
policies) and benefits under Section 4 of this Agreement (except to
the extent that the Executive may be ineligible for one or more such
benefits under applicable plan terms) for a period of time equal to
the lesser of (i) six (6) months; or (ii) the remainder of the Term.
If any question shall arise as to whether during any period the
Executive is disabled so as to be unable to perform the essential
functions of the Executive's then existing position or positions
with or without reasonable accommodation, the Executive may, and at
the request of the Employer shall, submit to the Employer a
certification in reasonable detail by a physician selected by the
Employer to whom the Executive or the Executive's guardian has no
reasonable objection as to whether the Executive is so disabled or
how long such disability is expected to continue, and such
certification shall for the purposes of this Agreement be conclusive
of the issue. The Executive shall cooperate with any reasonable
request of the physician in connection with such certification. If
such question shall arise and the Executive shall fail to submit
such certification, the Employer's determination of such issue shall
be binding on the Executive. Nothing in this Section 6(e) shall be
construed to waive the Executive's rights, if any, under existing
law including, without limitation, the Family and Medical Leave Act
of 1993, 29 U.S.C. Section 2601 ET SEQ. and the Americans with
Disabilities Act, 42 U.S.C. Section 12101 ET SEQ.
7. CONFIDENTIAL INFORMATION AND COOPERATION.
(a) DEFINITIONS. For purposes of this Section 7, the following
terms shall have the following meanings:
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(i) "Employer" means the Employer and its affiliated
and related entities (including, without limitation, BPFH and
its affiliated and related entities).
(ii) "Confidential Information" means information
belonging to the Employer whether reduced to writing (or in a
form from which such information can be obtained, translated,
or derived into reasonably usable form), or maintained in the
Executive's mind or memory, which derives independent economic
value from not being readily known to or ascertainable by
proper means by others who can obtain economic value from the
disclosure or use of such information, including without
limitation, financial information, reports, and forecasts;
inventions, improvements and other intellectual property;
trade secrets; know-how; designs, processes or formulae;
software or related code; market or sales information or
plans; customer lists; and business plans, prospects and
opportunities (such as possible acquisitions or dispositions
of businesses or facilities) which have been discussed or
considered by the management of the Employer. Confidential
Information includes information developed by the Executive in
the course of the Executive's employment by the Employer, as
well as other information to which the Executive may have
access in connection with the Executive's employment.
Confidential Information also includes the confidential
information of others with which the Employer have a business
relationship. Notwithstanding the foregoing, Confidential
Information does not include information in the public domain,
unless due to breach of the Executive's duties under Section
7(c).
(iii) "Services" means financial planning, tax
consulting, investment advisory and investment counseling
services related to financial management for individuals,
families, and other entities.
(iv) "Customer" means any person or entity, or
affiliate or member of the immediate family of such person or
entity, who (A) is receiving Services from the Employer on the
date of termination of the Executive's employment with the
Employer ("Termination Date"), (B) received Services from the
Employer or the Executive at any time during the one (1) year
period immediately preceding the Termination Date, (C) the
Executive solicited, directly or indirectly, in whole or in
part, on behalf of the Employer to provide Services within one
(1) year preceding the Termination Date, (D) anyone solicited,
directly or indirectly, in whole or in part, on behalf of the
Employer to provide Services within one (1) year preceding the
Termination Date, or (E) has received an in person
presentation within twelve (12) months prior to or has been
scheduled by the Company, to the knowledge of Executive, to
receive such a presentation within one (1) month after such
Termination Date, provided that any restriction as to such
person under this Section 7(a)(iv)(E) shall terminate as of
the first anniversary of such Termination Date unless as of
such anniversary
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the person has become an actual client of Employer, BPFH or
any of their affiliates.
(v) "Restricted Term" means the period commencing on
the Effective Date and ending two (2) years following the
Termination Date, regardless of reason for termination.
(b) ALL BUSINESS TO BE THE PROPERTY OF THE EMPLOYER. The
Executive agrees that any and all presently existing financial planning
and related businesses of the Employer, and all businesses developed by
the Employer, including by such Executive or any other employee or
agent of the Employer, including, without limitation, all investment
methodologies, all investment advisory contracts, fees and fee
schedules, commissions, records, data, client lists, agreements, trade
secrets, and any other incident of any business developed by the
Employer or earned or carried on by the Executive for the Employer, and
all trade names, service marks and logos under which the Employer does
business, and any combinations or variations thereof and all related
logos, are and shall be the exclusive property of the Employer for its
sole use, and (where applicable) shall be payable directly to the
Employer. In addition, the Executive acknowledges and agrees that the
investment performance of the accounts managed by the Employer was
attributable to the efforts of the team of professionals at the
Employer and not to the efforts of any single individual, and that
therefore, the investment performance records of each account managed
by the Employer is and shall be the exclusive property of the Employer.
(c) CONFIDENTIALITY. The Executive understands and agrees that
the Executive's employment creates a relationship of confidence and
trust between the Executive and the Employer with respect to all
Confidential Information. At all times, both during the Executive's
employment with the Employer and after its termination, the Executive
will keep in confidence and trust all such Confidential Information,
and will not use or disclose any such Confidential Information without
the written consent of the Employer, except as may be necessary in the
ordinary course of performing the Executive's duties to the Employer.
(d) DOCUMENTS, RECORDS, ETC. All documents, records, data,
apparatus, equipment and other physical property, whether or not
pertaining to Confidential Information, which are furnished to the
Executive by the Employer or are produced by the Executive in
connection with the Executive's employment will be and remain the sole
property of the Employer. The Executive will return to the Employer all
such materials and property, including any material or medium from
which any Confidential Information may be ascertained or derived, as
and when requested by the Employer. In any event, the Executive will
return all such materials and property immediately upon termination of
the Executive's employment for any reason. The Executive will not
retain with the Executive any such material or property or any copies,
compilations, or analyses thereof after such termination.
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(e) NONSOLICITATION AND NONACCEPTANCE OF CUSTOMERS. During the
Restricted Term, regardless of the reason for termination of his
employment, the Executive will not, directly or indirectly, in any
capacity:
(i) solicit the business or patronage of any Customer
for any person or entity, other than the Employer or any of
its affiliates,
(ii) divert, entice, or otherwise take away from the
Employer the business or patronage of any Customer, or attempt
to do so,
(iii) solicit or induce any Customer to terminate or
reduce its relationship with the Employer,
(iv) provide or assist with the provision of Services
to a Customer (except in his capacity as an employee of the
Employer), or
(v) refer a Customer to another provider of Services,
other than an affiliate of the Employer.
(f) PROHIBITION AGAINST JOINING CERTAIN OTHER EXECUTIVES OF
EMPLOYER. Without limiting an any respect the Executive's obligations
elsewhere hereunder, during the Restricted Term the Executive will not
in any capacity, directly or indirectly, perform any consulting or
other services or duties for, and will not be a party to, any business,
organization or entity which directly or indirectly performs any
Services for any Customers in which any or all of Xxxxxxx X. Xxxxxxx,
Xxxxxxx Xxxxxxxx, or Xxxx Xxx Xxxxxxxx directly or indirectly
participate.
(g) NONSOLICITATION AND NONACCEPTANCE OF EMPLOYEES. During the
Restricted Term, regardless of the reason for termination of his
employment, the Executive will not directly or indirectly, in any
capacity:
(i) hire, employ, cause to be hired or cause to be
employed, directly or indirectly through any enterprise with
which he is associated, (A) any current employee or consultant
of the Employer, (B) any individual who had been employed by
the Employer within two (2) years preceding the Termination
Date, or (C) any individual to whom an in person interview has
been held within 12 months prior to or one (1) month after
such Termination Date, provided that any restriction as to
such person under this Section 7(g)(i)(C) shall terminate as
of the first anniversary of such Termination Date unless as of
such anniversary the person has become an actual officer,
director or employee of Employer, BPFH or any of their
affiliates; or
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(ii) recruit, solicit or induce (or in any way assist
another person or enterprise in recruiting, soliciting or
inducing) any employee or consultant of the Employer to
terminate his or her employment or other relationship with the
Employer;
(h) ACKNOWLEDGMENTS. The Executive acknowledges and agrees
that the restrictions set forth in Section 7 are intended to protect
the Employer's interest in its Confidential Information and its
commercial relationships and goodwill (with its customers, prospective
customers, vendors, consultants and employees), including, without
limitation, Confidential Information, commercial relationships and
goodwill developed while the executive was employed by the Employer,
and are reasonable and appropriate for these purposes.
(i) DISCLOSURE OF AGREEMENT. For a period of two (2) years
after the date that Executive's employment is terminated, regardless of
the reason for such termination, the Executive will disclose the
existence and terms of this Agreement to any prospective employer,
partner, co-venturer, investor or lender prior to entering into an
employment, partnership or other business relationship with such person
or entity.
(j) THIRD-PARTY AGREEMENTS AND RIGHTS. The Executive hereby
confirms that the Executive is not bound by the terms of any agreement
with any previous employer or other party which restricts in any way
the Executive's use or disclosure of information or the Executive's
engagement in any business. The Executive represents to the Employer
that the Executive's execution of this Agreement, the Executive's
employment with the Employer and the performance of the Executive's
proposed duties for the Employer will not violate any obligations the
Executive may have to any such previous employer or other party. In the
Executive's work for the Employer, the Executive will not disclose or
make use of any information in violation of any agreements with or
rights of any such previous employer or other party, and the Executive
will not bring to the premises of the Employer any copies or other
tangible embodiments of non-public information belonging to or obtained
from any such previous employment or other party.
(k) LITIGATION AND REGULATORY COOPERATION. During and after
the Executive's employment, the Executive shall cooperate fully with
the Employer in the defense or prosecution of any claims or actions now
in existence or which may be brought in the future against or on behalf
of the Employer which relate to events or occurrences that transpired
while the Executive was employed by the Employer. The Executive's full
cooperation in connection with such claims or actions shall include,
but not be limited to, being available to meet with counsel to prepare
for discovery or trial and to act as a witness on behalf of the
Employer at mutually convenient times. During and after the Executive's
employment, the Executive also shall cooperate fully with the Employer
in connection with any investigation or review of any federal, state or
local regulatory authority as any such investigation or review relates
to events or occurrences that
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transpired while the Executive was employed by the Employer. The
Employer shall reimburse the Executive for any reasonable out-of-pocket
expenses (including reasonable legal fees) incurred in connection with
the Executive's performance of obligations pursuant to this Section
7(k).
(l) INJUNCTION. The Executive agrees that it would be
difficult to measure any damages caused to the Employer which might
result from any breach by the Executive of the promises set forth in
this Section 7, and that in any event money damages would be an
inadequate remedy for any such breach. Accordingly the Executive agrees
that if the Executive breaches, or threatens to breach, any portion of
Section 7 of this Agreement, the Employer shall be entitled, in
addition to all other remedies that it may have, to an injunction or
other appropriate equitable relief to restrain any such breach without
showing or proving any actual damage to the Employer.
(m) WAIVER OF NON-COMPETITION PROVISIONS UPON CERTAIN EVENTS.
The Employer and BPFH agree that if either (i) a Termination Without
Cause (as defined in Section 6(c) hereof) occurs, (ii) a Change of
Control (as defined below) occurs AND the Executive terminates his or
her employment for Good Reason (as defined below) upon fourteen (14)
days prior written notice to the Employer, or (iii) Executive is not a
director of BPFH at any time prior to two (2) years from the Effective
Date, except if Executive has been removed as a director of BPFH for
cause pursuant to BPFH's by-laws, then Employer and BPFH shall waive
the non-competition provision contained in Section 5.14 of the Plan of
Merger with respect to the Executive. For purposes of this subsection,
(X) "Change of Control" means any change in the common stock ownership
of BPFH that results in an unaffiliated entity owning or controlling 51
percent or more of the total issued and outstanding common stock of
BPFH and (Y) "Good Reason" means (1) any circumstance(s) that has or
have the effect of materially reducing the Executive's duties or
authority provided for or contemplated herein (a "Material Change") or
(2) a breach by the Employer of its material obligations under the
Agreement (a "Material Breach"). A Material Change or a Material Breach
shall constitute Good Reason only if the Executive has notified the
Board, in writing, setting forth all of the circumstances that the
Executive claims constitute such Material Change or Material Breach and
the Employer has failed to remedy such Material Change or Material
Breach within thirty (30) days of such notice.
(n) WAIVER OF NON-DISCLOSURE FOR NON-CONFIDENTIAL INFORMATION.
Nothing contained herein shall be deemed to prohibit the Executive from
using or divulging information which:
(i) is in the public domain, or is generally known or
available at the time of disclosure unless due to breach of
the Executive's duties under Section 7(b) hereof;
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(ii) is information obtained by the Executive on a
non-confidential basis from any person or source (provided
that the Executive does not have actual knowledge or reason to
know that such other person or source acquired and disclosed
such information in an unlawful manner) other than the
Employer unless due to breach of the Executive's duties under
Section 7(b) hereof;
(iii) Executive can demonstrate by clear and
convincing evidence was already owned or possessed by
Executive at the time of disclosure; or
(iv) is required to be disclosed by law or pursuant
to judicial order or a governmental agency, provided the
Executive shall promptly notify the Employer of the proposed
disclosure and give the Employer the opportunity to seek a
protective order, and further that such disclosure shall be
made in a manner to obtain the maximum protection, if made.
8. ARBITRATION OF DISPUTES. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of the
Executive's employment or the termination of that employment (including, without
limitation, any claims of unlawful employment discrimination whether based on
age or otherwise) shall, to the fullest extent permitted by law, be settled by
arbitration in any forum and form agreed upon by the parties or, in the absence
of such an agreement, under the auspices of the American Arbitration Association
("AAA") in Boston, Massachusetts in accordance with the Employment Dispute
Resolution Rules of the AAA, including, but not limited to, the rules and
procedures applicable to the selection of arbitrators. In the event that any
person or entity other than the Executive or the Employer may be a party with
regard to any such controversy or claim, such controversy or claim shall be
submitted to arbitration subject to such other person or entity's agreement.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. This Section 8 shall be specifically enforceable.
Notwithstanding the foregoing, this Section 8 shall not preclude either party
from pursuing a court action for the sole purpose of obtaining a temporary
restraining order or a preliminary injunction in circumstances in which such
relief is appropriate; PROVIDED THAT any other relief shall be pursued through
an arbitration proceeding pursuant to this Section 8.
9. CONSENT TO JURISDICTION. To the extent that any court action is
permitted consistent with or to enforce Section 8 of this Agreement, the parties
hereby consent to the jurisdiction of the Superior Court of the Commonwealth of
Massachusetts and the United States District Court for the District of
Massachusetts. Accordingly, with respect to any such court action, the Executive
(a) submits to the personal jurisdiction of such courts; (b) consents to service
of process; and (c) waives any other requirement (whether imposed by statute,
rule of court, or otherwise) with respect to personal jurisdiction or service of
process.
10. INTEGRATION. This Agreement and the Plan of Merger constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior agreements between the parties with respect to any
related subject matter.
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11. ASSIGNMENT; SUCCESSORS AND ASSIGNS, ETC. Neither the Employer nor
the Executive may make any assignment of this Agreement or any interest herein,
by operation of law or otherwise, without the prior written consent of the other
party; PROVIDED THAT the Employer may assign its rights under this Agreement
without the consent of the Executive in the event that the Employer shall effect
a reorganization, consolidate with or merge into any other corporation,
partnership, organization or other entity, or transfer all or substantially all
of its properties or assets to any other corporation, partnership, organization
or other entity. This Agreement shall inure to the benefit of and be binding
upon the Employer and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
12. ENFORCEABILITY. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
13. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
14. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Executive at the last address the Executive has filed in writing with the
Employer or, in the case of the Employer or BPFH, at their respective main
offices, attention of the respective Chief Executive Officer, and shall be
effective on the date of delivery in person or by courier or three (3) days
after the date mailed.
15. AMENDMENT. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a duly authorized
representative of the Employer.
16. GOVERNING LAW. This is a Massachusetts contract and shall be
construed under and be governed in all respects by the laws of the Commonwealth
of Massachusetts, without giving effect to the conflict of laws principles of
such Commonwealth. With respect to any disputes concerning federal law, such
disputes shall be determined in accordance with the law as it would be
interpreted and applied by the United States Court of Appeals for the First
Circuit.
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17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Employer, by its duly authorized officer, and by the
Executive, as of the Effective Date.
RINET COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
BOSTON PRIVATE FINANCIAL HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
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EXHIBIT A
EXECUTIVE OFFICER STOCK OPTION POOL
SECTION 1. REGULAR CONTRIBUTIONS TO THE STOCK OPTION POOL. Boston
Private Financial Holdings, Inc., a Massachusetts corporation ("BPFH") will,
within ninety (90) days after the end of each fiscal year beginning with fiscal
year 2000, contribute options ("Options") to purchase twenty-five thousand
(25,000) shares of common stock, $1.00 par value per share, of BPFH ("BPFH
Common Stock") to a stock option pool (the "Stock Option Pool") for the benefit
of the Initial Participants (as defined below) and the Subsequent Participants
(as defined below), if applicable, if the Pre-Tax Contribution (as defined
below) of RINET Company, Inc., a Massachusetts corporation ("RCI"), for the most
recent fiscal year exceeds RCI's Pre-Tax Contribution for the Base Year (as
defined below) by at least 15%.
SECTION 2. HOLDOVER OF CONTRIBUTION TO THE STOCK OPTION POOL. If RCI's
Pre-Tax Contribution for the most recent fiscal year exceeds RCI's Pre-Tax
Contribution for the Base Year by more than 10% but less than 15%, then BPFH
will hold over its contribution of Options to purchase twenty-five thousand
(25,000) shares of BPFH Common Stock to the Stock Option Pool ("Held Over
Options"). Such Held Over Options shall be included with the following year's
contribution to the Stock Option Pool if in the following year BPFH makes a
contribution of Options pursuant to Section 1 above. In no event, however, shall
the Held Over Options be held over for more than one fiscal year.
SECTION 3. ELIGIBILITY FOR STOCK OPTION POOL. Xxxxxxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxxx, Xxxxxxx Xxxxxxxx and Xxxx Xxx Xxxxxxxx (collectively, the
"Initial Participants") shall be eligible to participate in the Stock Option
Pool. In addition, a majority of RCI's Board of Directors may select one or more
other employees of RCI (a "Subsequent Participant") to participate in the Stock
Option Pool; provided that such majority shall include (i) Xxxxxxx X. Xxxxx, or
his duly appointed successor, and (ii) at least two Initial Participants,
provided that at least two Initial Participants are then employed by RCI.
SECTION 4. GRANTS OF OPTIONS.
(a) BPFH and RCI acknowledge and agree that all Options
contributed to the Stock Option Pool shall be granted to the Initial
Participants or any Subsequent Participants, if applicable, upon and
promptly following recommendation of the RCI's Chief Executive Officer
to RCI's Board of Directors, subject to a majority vote of BPFH's Board
of Directors. All Options issued shall be subject to the terms and
conditions of the BPFH Long Term Incentive Compensation Plan.
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(b) Any recipient of Options from the Stock Option Pool shall
execute a stock option agreement in form that is satisfactory to BPFH's
Board of Directors.
SECTION 4. EXERCISE OF OPTIONS. The Options will have an exercise price
equal to the per share closing sale price of BPFH Common Stock as reported on
the Nasdaq National Market, or any successor listing entity, on the date such
Options are granted to such executive officer.
SECTION 5. DEFINITIONS.
(a) PRE-TAX CONTRIBUTION. For the purposes herein, "Pre-Tax
Contribution" means RCI's pre-tax income not including (i) BPFH overhead
allocation, (ii) revenue and bonus related to performance fees on alternative
investment products, and (iii) executive bonus pool expense.
(b) BASE YEAR. For purposes herein, "Base Year" means that
fiscal year beginning with fiscal year 1999 (excluding the most recent fiscal
year), in which RCI generated the highest Pre-Tax Contribution.
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EXHIBIT B
BONUS POOL
SECTION 1. CONTRIBUTIONS TO BONUS POOL. RINET Company, Inc., a
Massachusetts corporation ("RCI") will establish a bonus pool (the "Bonus Pool")
which shall be funded each year (except for fiscal year 1999) as follows:
(a) RCI will add to the Bonus Pool fifteen percent (15%) of
any Pre-Tax Contribution (as defined below) RCI makes to Boston Private
Financial Holdings, Inc., a Massachusetts corporation ("BPFH") which is
between one hundred percent (100%) and one hundred ten percent (110%)
of RCI's highest year's Pre-Tax Contribution (as defined below) since
fiscal year 1999.
(b) RCI will add to the Bonus Pool thirty percent (30%) of any
Pre-Tax Contribution RCI makes to BPFH which is between one hundred ten
percent (110%) and one hundred fifteen percent (115%) of RCI's highest
year's Pre-Tax Contribution since fiscal year 1999.
(c) RCI will add to the Bonus Pool fifty percent (50%) of any
Pre-Tax Contribution RCI makes to BPFH which is in excess of one
hundred fifteen percent (115%) of RCI's highest year's Pre-Tax
Contribution since fiscal year 1999.
Notwithstanding the foregoing, if the highest year's Pre-Tax
Contribution since fiscal year 1999 contains extraordinary revenues from special
projects, then the BPFH's Chief Executive Officer may, in his sole discretion,
adjust such Pre-Tax Contribution amount down for purposes of funding the Bonus
Pool in accordance with this Section 1.
SECTION 2. ELIGIBILITY FOR BONUS POOL. Xxxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxx, Xxxxxxx Xxxxxxxx and Xxxx Xxx Xxxxxxxx (collectively, the "Initial
Participants") shall be eligible to participate in the Bonus Pool. In addition,
a majority of the Board of Directors may select one or more other employees of
RCI to participate in the Bonus Pool; provided that such majority shall include
at least two of the Initial participants, provided that at least two Initial
Participants are then employed by RCI.
SECTION 3. AWARDS UNDER BONUS POOL. Any bonus awarded to an Initial
Participant from the Bonus Pool will be awarded (a) within ninety (90) days
after the end of each fiscal year beginning with fiscal year 2000, and (b) in
such amounts as recommended by RCI's Chief Executive Officer, subject to
approval by RCI's Board of Directors and on the terms and conditions set forth
in such employment agreement with RCI.
SECTION 4. DECLARATION OF DIVIDENDS. Unless otherwise agreed to by RCI
and BPFH, BPFH and RCI agree that if BPFH will not cause RCI to declare
dividends to an extent
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which would reduce RCI's working capital below a level equal to RCI's operating
expenses for the prior three (3) months.
SECTION 5. DEFINITIONS. For the purposes herein:
(a) "Pre-Tax Contribution" means RCI's pre-tax income not
including (i) BPFH overhead allocation, (ii) revenue and bonus related
to performance fees on alternative investment products, and (iii)
executive bonus pool expense.
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