Exhibit 10.1
EXECUTION COPY
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (this "Agreement") by and
between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Delaware corporation (the "Company"), and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (the "Executive"), is dated as of June 30, 2005 (the "Execution
Date").
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. Resignation. Effective as of June 30, 2005 (the "Termination
Date"), the Executive's employment with the Company shall terminate
voluntarily and the Executive shall cease to serve as Chief Executive Officer,
Chairman of the Board of Directors of the Company (the "Board") and a member
of the Board, and shall cease to serve in all other positions the Executive
then holds as an employee, officer or member of the board of directors of the
Company, its subsidiaries or affiliates (the Company, its subsidiaries and
affiliates are hereinafter referred to as the "Affiliated Entities"). The
Executive hereby agrees to execute any and all documentation to effectuate
such terminations upon request by the Company, but he shall be treated for all
purposes as having voluntarily terminated his service with the Affiliated
Entities upon the Termination Date, regardless of when or whether he executes
any such documentation. Notwithstanding the foregoing, for a period of 30 days
following the Termination Date, the Executive shall continue to receive
employee welfare benefits and perquisites as if he had continued in the employ
of the Company during such period.
2. Executive's Consideration. In consideration for the covenants set
forth in this Agreement, the Company shall provide to the Executive the
following payments and benefits.
(a) Bonus Payment. The Company shall pay to the Executive an
amount in cash equal to the product of (a) the product of (i) two and (ii) the
sum of (A) the Executive's annual base salary, (B) the Executive's annual
bonus and (C) the market value of the common stock of the Company underlying
the restricted stock units granted to the Executive, in each case with respect
to the Company's 2004 fiscal year as reported in the Company's most recent
annual proxy statement, and (b) the sum of (i) one and (ii) the percentage
change (expressed as a positive or negative decimal) from 2004 to 2005 in the
Company's "Pre-Tax Earnings" (as such term is defined in Section 14 of the
1995 Equity Incentive Compensation Plan (the "EICP")) as determined by the
Compensation Committee of the Board (the "Bonus Payment").
For purposes of Section 14 of the EICP, "Extraordinary and
unusual" would include but not be limited to:
(i) Write downs or sales of the aircraft portfolio,
(ii) Losses from a change in significant estimates used in
calculation of Pre-Tax Earnings e.g. loan loss methodology, 02-03 reserves,
(iii) Introduction of a new compensation plan, retention
or other awards outside of the normal compensation program as applied to 2004,
severance payments in excess of the amount accrued in 2004 or other
compensation related changes,
(iv) Compensation in excess of the payout rate in a range
established for the six months financials ended May 31, 2005 as published with
the press release on June 22, 2005 ("2005 YTD financials") and the two
previous years,
(v) Legal or regulatory matters costs in excess of a
normal amount e.g. $200 million in addition to the amounts accrued in the ▇▇▇▇
▇▇▇ financials, and
(vi) Losses associated with business decisions concerning
either owned or leased office space.
Fifty percent of the Bonus Payment shall be paid to the Executive on January
15, 2006 and fifty percent of the Bonus Payment shall be paid to the Executive
on January 15, 2007 or, in each case, on such later date as may be required
pursuant to Section 409A of the Internal Revenue Code of 1986, as amended (the
"Code")).
(b) Retiree Medical Benefits. Following the Termination Date,
the Executive will be provided with retiree medical benefits provided to
former senior executives of the Company generally pursuant to the terms of the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Retiree Medical Plan as may be in effect from time to time.
(c) Annual Payment. In lieu of benefits that otherwise would
have been provided to the Executive following the Termination Date, the
Executive shall receive an annual payment equal to $250,000 payable on the
Termination Date (or on such later date as may be required pursuant to Section
409A of the Code) and the first business day following each anniversary of the
Termination Date for the remainder of the Executive's life.
(d) Charitable Contributions. Following the Termination Date,
the Company shall provide a contribution of $250,000 per year in the
Executive's name commencing in calendar year 2006 for the remainder of the
Executive's life to charitable institutions of the Executive's selection
consistent with the contributions made by the Company on behalf of other
former Chief Executive Officers of the Company on behalf of whom the Company
makes such contributions, provided that such charitable institutions and
contribution are consistent with the Company's charitable strategy.
(e) Administrative Support. Following the Termination Date, the
Company shall provide to the Executive administrative support consistent with
the administrative support provided by the Company to other former Chief
Executive Officers of the Company at the sole expense of the Company for the
remainder of the Executive's life.
(f) Reimbursement for Expenses. The Company shall promptly
reimburse the Executive for any reasonable expenses incurred by the Executive
in connection with his employment on or before the Termination Date in
accordance with the Company's expense reimbursement practices and policies,
provided that the Executive submits appropriate documentation evidencing such
expenses.
(g) Other Benefits. Amounts that are vested benefits or that
the Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any other contract or agreement with the Company or
the Affiliated Entities at or subsequent to the Termination Date, including
under any qualified or non-qualified retirement plan, shall be
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payable in accordance with such plan, policy, practice or program or contract
or agreement, except as explicitly modified by this Agreement. Notwithstanding
the foregoing, the Executive shall not be entitled to any severance pay or
benefits under any severance plan, program or policy of the Company and the
Affiliated Entities.
3. Equity and Performance Awards. Exhibit A hereto sets forth a
complete list of all of the Executive's currently outstanding stock options
and other equity awards (together, "Stock Incentives"), which shall vest
immediately upon the Termination Date and shall otherwise be governed in
accordance with their terms, provided that, following the Execution Date, the
only "Cancellation Events" with respect to such Stock Incentives shall be
those events set forth on Exhibit B.
Notwithstanding any provision of this Agreement to the contrary, in the event
that, following the Execution Date, the Executive becomes an officer, agent,
employee, partner or director of any corporation, partnership or other entity,
or otherwise renders services to or assist or hold an interest (except as a
less than 1-percent shareholder of a publicly traded company) in any Core
Competitor (as defined in the 1995 Equity Incentive Compensation Plan), the
Executive shall cease to be entitled to the payments and benefits to be paid
or provided to him or on his behalf under Sections 2(a), 2(c), 2(d) or 2(e).
4. Releases.
(a) Executive's Release.
(i) General. In consideration of the payments and benefits
set forth in this Agreement, the Executive for himself, his heirs,
administrators, representatives, executors, successors and assigns
(collectively "Releasors") does hereby irrevocably and unconditionally
release, acquit and forever discharge the Company, its subsidiaries and
affiliates and their respective current and former shareholders, subsidiaries,
parents, affiliates, divisions, trustees, partners, agents, directors,
officers and employees, including without limitation all persons acting by,
through, under or in concert with any of them (collectively, "Releasees"), and
each of them from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, remedies, actions,
causes of action, suits, rights, demands, costs, losses, debts and expenses
(including attorneys' fees and costs) of any nature whatsoever arising out of
or relating to his employment relationship, or the termination of that
relationship, with the Company and its Affiliated Entities, known or unknown,
whether in law or equity and whether arising under federal, state or local law
and in particular including any claim for discrimination based upon race,
color, ethnicity, sex, age (including the Age Discrimination in Employment Act
of 1967, as amended ("ADEA"), national origin, religion, disability, or any
other unlawful criterion or circumstance, which the Executive and Releasors
had, now have, or may have in the future against each or any of the Releasees
from the beginning of the world until the date hereof relating to the
Executive's employment with the Company and its subsidiaries and affiliates
("Claims").
(ii) Exclusions from Release. Anything herein to the
contrary notwithstanding, nothing herein shall release the Company from any
claims or damages based on (A) any right or claim that arises after the date
hereof, (B) any right the Executive may have under this Agreement and under
any applicable plan, policy, program or other agreement or arrangement with
the Company except as modified by this Agreement or (C) the Executive's
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right to indemnification as set forth in this Agreement. The parties agree
that this Agreement shall not affect the rights and responsibilities of the
U.S. Equal Employment Opportunity Commission (hereinafter "EEOC") to enforce
ADEA and other laws. In addition, the parties agree that this Agreement shall
not be used to justify interfering with the Executive's protected right to
file a charge or participate in an investigation or proceeding conducted by
the EEOC. The parties further agree that the Executive knowingly and
voluntarily waives all rights or claims that arose prior to the date hereof
that the Releasers may have against the Releasees, or any of them, to receive
any benefit or remedial relief (including, but not limited to, reinstatement,
back pay, front pay, damages, attorneys' fees, experts' fees) as a consequence
of any investigation or proceeding conducted by the EEOC ("EEOC Claims").
(iii) ADEA Rights. The Executive acknowledges that: (A)
this entire Agreement is written in a manner calculated to be understood by
him; (B) he has been advised to consult with an attorney before executing this
Agreement; (C) he was given a period of twenty-one days within which to
consider this Agreement; and (D) to the extent he executes this Agreement
before the expiration of the twenty-one-day period, he does so knowingly and
voluntarily and only after consulting his attorney. The Executive shall have
the right to cancel and revoke this Agreement during a period of seven days
following the date hereof, and this Agreement shall not become effective, and
no money shall be paid hereunder, until the day after the expiration of such
seven-day period. The seven-day period of revocation shall commence upon the
date hereof. In order to revoke this Agreement, the Executive shall deliver to
the Company's Chief Legal Officer, prior to the expiration of said seven-day
period, a written notice of revocation. Upon such revocation, this Agreement
shall be null and void and of no further force or effect.
(iv) Acknowledgement. The Executive acknowledges and
agrees that the consideration provided to him under the terms of this
Agreement exceeds anything to which he is otherwise entitled and that he is
owed no wages, commissions, bonuses, finder's fees, equity or incentive
awards, severance pay, vacation pay or any other compensation or payments or
remuneration of any kind or nature other than as specifically provided for in
this Agreement or the terms of any benefit plan in which the Executive
participates as may be modified by this Agreement.
(b) Company's Release. The Company, its subsidiaries,
affiliates, partnerships and joint ventures and each of their predecessors and
successors also agree that, subject to this Agreement becoming effective, they
hereby irrevocably and unconditionally release, acquit and forever discharge
the Executive from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, remedies, actions,
causes of action, suits, rights, demands, costs, losses, debts and expenses
(including attorneys' fees and costs) of any nature whatsoever, known or
unknown, whether in law or equity and whether arising under federal, state or
local law that the Company had, now has, or may have in the future against the
Executive from the beginning of the world until the date hereof arising out of
or relating to the Executive's employment, relationship, or the termination of
that relationship with the Company and its Affiliated Entities, except that
this Section 4(b) shall not apply to any act that is determined to be a
criminal act under any Federal, state or local law committed or perpetuated by
the Executive during the course of the Executive's employment with the Company
or its affiliates (including any criminal act of fraud, misappropriation of
funds or embezzlement or any other criminal action).
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(c) Exclusion from Both Releases. None of the foregoing
provisions of this Section 4 shall be considered as releasing the Company's or
Executive's respective rights or obligations with respect to any Stock
Incentives as modified by this Agreement.
5. Mutual Nondisparaegment.
(a) Executive's Covenant. Following the Execution Date, the
Executive shall not make, participate in the making of, or encourage or
facilitate any other person to make, any statements, written or oral, which
criticize, disparage, or defame the goodwill or reputation of, or which
embarrass or adversely affect the morale of, any of the Affiliated Entities or
any of their respective present, former or future directors, officers,
executives, employees and/or shareholders. The Executive further agrees not to
make any negative statements, written or oral, relating to his employment, the
termination of his employment, or any aspect of the business of the Affiliated
Entities.
(b) Company's Covenant. Following the Execution Date, the
Company shall not and shall instruct the members of its Executive Committee,
Rule 16(b) officers and the Board not to make, participate in the making of,
or encourage or facilitate any employees or any other person to make, any
statements, written or oral, which criticize, disparage, or defame the
reputation of, or which are intended to embarrass, the Executive. In addition,
the Company shall advise its executive officers and directors not to make any
negative statements, written or oral, relating to the Executive's employment
or the termination of his employment.
(c) Exclusions. Notwithstanding the foregoing provisions of
this Section 5, it shall not be a violation of this Section 5 for any person
to make truthful statements when required by order of a court or other body
having jurisdiction, or as otherwise may be required by law or under an
agreement entered into in connection with pending or threatened litigation
pursuant to which the party receiving such information agrees to keep such
information confidential.
6. Confidentiality. The Executive shall hold in a fiduciary capacity
for the benefit of the Company and the other Affiliated Entities and shall not
disclose to others, copy, use, transmit, reproduce, summarize, quote or make
commercial, directly or indirectly, any secret or confidential information,
knowledge or data relating to any of the Affiliated Entities and their
businesses (including without limitation information about the Affiliated
Entities' clients' and customers' and their proprietary knowledge and trade
secrets, software, technology, research, secret data, customer lists, investor
lists, business methods, business plans, training materials, operating
procedures or programs, pricing strategies, employee lists and other business
information) that the Executive has obtained during his employment with the
Company and/or any of the other Affiliated Entities, provided that the
foregoing shall not apply to information that is generally known to the public
other than as a result of the breach of this Agreement by the Executive
("Confidential Information"). Notwithstanding the foregoing provisions, if the
Executive is required to disclose any such confidential or proprietary
information pursuant to applicable law or a subpoena or court order, the
Executive shall promptly notify the Company in writing of any such requirement
so that the Company or the appropriate Affiliated Entity may seek an
appropriate protective order or other appropriate remedy or waive compliance
with the provisions hereof. The Executive shall reasonably cooperate with the
Affiliated Entities to
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obtain such a protective order or other remedy. If such order or other remedy
is not obtained prior to the time the Executive is required to make the
disclosure, or the Company waives compliance with the provisions hereof, the
Executive shall disclose only that portion of the confidential or proprietary
information which he is advised by counsel that he is legally required to so
disclose. Prior to the Termination Date, the Executive shall surrender
immediately to the Company, except as specifically provided otherwise herein,
all Confidential Information and all other property of the Company or any of
the other Affiliated Entities in the Executive's possession and all property
made available to the Executive in connection with his employment by the
Company or any of the other Affiliated Entities, including, without
limitation, any and all other records, manuals, customer and client lists,
notebooks, files, papers, computers, computer programs, computer discs, lists,
data, cellular phones, two-way pagers, palm held electronic devices,
electronically stored information and all other documents (and all copies
thereof) held or made by the Executive in the course of the Executive's
employment with the Company or any of the other Affiliated Entities. Anything
to the contrary notwithstanding, and in all cases regardless of whether the
information is retained in original form, as a copy, electronically or
otherwise, the Executive shall be entitled to retain (a) papers and other
materials of a personal nature, including, without limitation, photographs,
correspondence, personal diaries, calendars and rolodexes, files relating to
his personal affairs and personal phone books, (b) information showing his
compensation or relating to reimbursement of expenses, (c) information that
may be needed for his personal tax purposes and (d) copies of plans, programs
and agreements relating to his employment, or termination thereof, with the
Company.
7. Cooperation. The Executive agrees that during and after his
employment by the Company, the Executive will assist the Affiliated Entities
in the defense of any claims, or potential claims that may be made or
threatened to be made against any member of the Affiliated Entities in any
action, suit or proceeding, whether civil, criminal, administrative,
investigative or otherwise (a "Proceeding"), and will assist the Affiliated
Entities in the prosecution of any claims that may be made by any member of
the Affiliated Entities in any Proceeding, to the extent that such claims may
relate to the Executive's employment or the period of the Executive's
employment by the Company. The Executive agrees, unless precluded by law, to
promptly inform the Company if the Executive is asked to participate (or
otherwise become involved) in any Proceeding involving such claims or
potential claims. The Executive also agrees, unless precluded by law, to
promptly inform the Company if the Executive is asked to assist in any
investigation (whether governmental or otherwise) of any member of the
Affiliated Entities (or their actions), regardless of whether a lawsuit has
then been filed against any member of the Affiliated Entities with respect to
such investigation. The Company agrees to (a) reimburse the Executive for all
of the Executive's reasonable out-of-pocket expenses associated with such
assistance, including any reasonable attorneys' fees incurred by the Executive
in connection therewith. The Company agrees to provide the Executive with
substantially similar means of transportation as was provided to the Executive
immediately prior to the Execution Date in connection with the Executive's
performance of services to the Affiliated Entities following the Execution
Date.
8. Remedies. The Executive acknowledges that (a) the information to
which the Executive has had access during his employment with the Company is
specialized, unique in nature and of great value to the Company and the other
Affiliated Entities, (b) such information gives the Company and the other
Affiliated Entities a competitive advantage, (c) because of the nature of the
business in which the Company and the other Affiliated Entities are engaged
and
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because of the nature of the Confidential Information to which the Executive
has had access during his employment, it would be impractical and excessively
difficult to determine the actual damages of the Company and the other
Affiliated Entities in the event the Executive breached any of the covenants
of Sections 5, 6 or 7, and (d) remedies at law (such as monetary damages) for
any breach of the Executive's covenants under Sections 5, 6 or 7 would be
inadequate. The Company acknowledges and agrees that it would be impractical
and excessively difficult to determine the actual damages of the Executive in
the event the Company breached any of the covenants of Section 5, and remedies
at law (such as monetary damages) for any breach of the Company's covenants
under Section 5 would be inadequate. The parties therefore agree and consent
that if either of them commits any such breach or threatens to commit any such
breach, the other party shall have the right (in addition to, and not in lieu
of, any other right or remedy that may be available to it) to temporary and
permanent injunctive relief from a court of competent jurisdiction, without
posting any bond or other security and without the necessity of proof of
actual damage. With respect to any provision of Sections 5, 6 or 7 that is
finally determined to be unenforceable, the Executive and the Company hereby
agree that this Agreement or any provision hereof may be reformed so that it
is enforceable to the maximum extent permitted by law. If any of the covenants
of Sections 5, 6 or 7 is determined to be wholly or partially unenforceable in
any jurisdiction, such determination shall not be a bar to or in any way
diminish the Company's right to enforce any such covenant in any other
jurisdiction.
9. Entire Agreement. This Agreement sets forth the entire agreement
of the Company and the Executive with respect to the subject matter hereof,
and supersedes all prior agreements, understandings, discussions and
negotiations, whether written or oral, between the parties hereto other than
the compensation and benefit plans referred to in Sections 2 and 3 above and
the awards thereunder, all of which shall continue in accordance with their
terms, as modified by Sections 2 and 3 above and as may be further modified
with respect to participants generally. Without limiting the generality of the
foregoing, the Executive expressly acknowledges and agrees that except as
specifically set forth in this Agreement, he is not entitled to receive any
severance pay, severance benefits, compensation or employee benefits of any
kind whatsoever from the Affiliated Entities including, without limitation,
any severance or other benefits from any of the Affiliated Entities.
10. Successors. This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by
the Executive other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
spouse and by the Executive's legal representatives and the legal
representatives of his estate to the extent then applicable. This Agreement
shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
11. Amendment. This Agreement may be amended, modified or changed
only by a written instrument executed by the Executive and the Company. Any
waiver to be effective must be in writing and signed by the party against whom
it is being enforced.
12. Governing Law; Arbitration.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to principles of conflict of laws.
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(b) Arbitration. Except as otherwise provided herein, the
Executive and the Company agree that any and all disputes between the
Executive and the Company and/or the Affiliated Entities, or their respective
employees, officers, directors, agents successors or assigns, which relate to,
arise out of or pertain to the Executive's employment, separation from
employment or this Agreement shall be submitted to and resolved by final and
binding arbitration. The arbitration shall be instead of any civil litigation;
this means that the Executive and the Company are each waiving any rights to a
jury trial.
(c) The Executive and the Company expressly understand and
agree that there will be no court or jury trial of disputes between them
arising out of or in connection with this Agreement, the Executive's
employment or separation from employment, including, but not limited to,
claims under federal, state or local laws prohibiting employment
discrimination. The only disputes not covered by this agreement to arbitrate
are actions for injunctive relief brought by either the Executive or the
Company and/or the Affiliated Entities as provided in Section 8 of this
Agreement. Furthermore, claims for unemployment insurance benefits, for
workers' compensation insurance benefits, and for benefits under any
ERISA-governed employee benefit plan(s), shall be resolved pursuant to the
claims procedures under such benefit plans, notwithstanding this agreement to
arbitrate.
(d) All disputes between the parties which are covered by this
agreement to arbitrate and which cannot be resolved within two weeks after a
demand for direct negotiation between the parties shall be submitted to
binding arbitration in New York, New York under the Commercial Arbitration
Rules of the American Arbitration Association before a panel of three (3)
neutral arbitrators selected under such Rules. Each party agrees to bear his
or its own attorneys' fees and costs in connection with such arbitration.
(e) The Executive and the Company knowingly and voluntarily
agree to this arbitration provision. A decision in arbitration shall be final
and binding. Any action to confirm an arbitration award hereunder must be
filed in a court having jurisdiction and located in the State of New York or
in any state or foreign country in which the Executive resides and that also
has personal jurisdiction over both parties; provided that both parties
stipulate that personal jurisdiction exists over them in New York. The
Executive shall be reimbursed for all reasonable legal fees incurred by the
Executive in connection with the negotiation and execution of this Agreement.
13. Notices. All notices and other communications hereunder shall be
in writing; shall be delivered by hand delivery to the other party or mailed
by registered or certified mail, return receipt requested, postage prepaid,
shall be deemed delivered upon actual receipt; and shall be addressed as
follows:
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If to the Executive:
At the last address on
File with the Company
With a copy to:
[ ]
[ ]
[ ]
If to the Company:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Legal Officer
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as either party shall have furnished to the other in
writing in accordance herewith.
14. Tax Withholding. Notwithstanding any other provision of this
Agreement, the Company may withhold from any amounts payable under this
Agreement, or any other benefits received pursuant hereto, such Federal, state
and/or local taxes as shall be required to be withheld under any applicable
law or regulation.
15. No Mitigation; No Offset. Except as may otherwise be provided in
this Agreement, in no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts
payable under this Agreement. There shall be no offset by the Company against
the Executive's entitlements under this Agreement for any compensation or
other amounts that he earns from subsequent employment or engagement of his
services on account of any claim that the Company may have against him.
16. Indemnification. The Executive will be provided with
indemnification rights to the fullest extent permitted by law and the
Executive will be provided with directors' and officers' liability insurance
coverage with respect to his acts or omissions while at the Company which are
no less favorable than those provided to members of the Management Committee
(or equivalent successor committee) or members of the Board of Directors of
the Company from time to time.
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17. Non-Admission. This Agreement does not constitute an
adjudication or finding on the merits of any issue or matter and it is not to
be construed as an admission by either party hereto or any Affiliated Entity
of any violation of any policies or procedures or of any unlawful behavior
whatsoever. Moreover, neither this Agreement nor anything in this Agreement
shall be construed to be or shall be admissible in any proceeding as evidence
of, or an admission by either party hereto or any Affiliated Entity of any
violation of policies, procedures, state or federal laws, regulations or
common-law rights.
18. Counterparts/Captions. This Agreement may be executed in
counterparts by facsimile signatures. The captions of this Agreement are not
part of the provisions hereof and shall have no force or effect.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed
this Agreement as of the date first set forth above.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name:
Date:
/s/ Miles ▇. ▇▇▇▇▇
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Exhibit A
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EXECUTIVE COMPENSATION EQUITY PORTFOLIO
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
As of June 13, 2005
Status: Active
Intl Status: Local
Full Career Date: Sep 5 1998
Retirement Date: Sep 5 1998
MWD on 6/10/2005: $50.00
STOCK UNITS
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Units
Award Grant Award Disposed or Units Conversion Current
Description Date Company Granted Units Held Units Vested Unvested Date** Market Value
-------------------------------------------------------------------------------------------------------------------------------
TDEPP 01/17/1997 DW600 57,399.23 57,399.23 57,399.23 0.00 (1) $2,869,961.25 Conv. delayed for
non-perf. grant
EICP 12/05/2000 MSCO 118,487.00 118,487.00 118,487.00 0.00 09/08/2005 $5,924,350.00 On Schedule
EICP 12/06/2001 MSCO 77,304.00 77,304.00 77,304.00 0.00 09/08/2006 $3,865,200.00 Anniversry of Term
or On Schedule
EICP 12/05/2002 MSCO 72,254.00 72,254.00 72,254.00 0.00 09/10/2007 $3,612,700.00 Anniversry of Term
or On Schedule
EICP 11/28/2003 MSCO 73,493.00 73,493.00 0.00 73,493.00 09/08/2008 $3,674,650.00 Anniversry of Term
or On Schedule
EICMC 12/14/2004 MSCO 251,799.00 251,799.00 0.00 251,799.00 09/08/2009 $12,589,950.00 On Schedule
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TOTAL STOCK UNITS HELD 650,736.23 650,736.23 325,444.23 325,292.00 $32,536,811.25
(1) First day of window period following term date.
STOCK OPTIONS
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Expiration
Award Grant Award Options Options Options Options Restriction Strike Intrinsic
Description Date Company Granted Held Vested Unvested Lift Date Price Date Value
-----------------------------------------------------------------------------------------------------------------------------------
EICP 12/12/1997 MSCO 252,252.00 252,252.00 252,252.00 0.00 01/02/2003 $26.9150 01/02/2008 $5,823,237.42
EICP 12/11/1998 MSCO 299,290.00 299,290.00 299,290.00 0.00 01/02/2004 $35.6450 01/02/2009 $4,296,307.95
EICP 12/09/1999 MSCO 277,172.00 277,172.00 277,172.00 0.00 01/02/2005 $60.1384 01/02/2010 $0.00
EEA10 03/24/2000 DW600 25,853.00 25,853.00 25,853.00 0.00 N/A $95.8125 01/16/2007 $0.00
EEAP9 03/24/2000 DW600 17,346.00 17,346.00 17,346.00 0.00 N/A $95.8125 01/16/2007 $0.00
EEA10 06/20/2000 DW600 153,161.00 153,161.00 153,161.00 0.00 N/A $86.5625 01/16/2007 $0.00
EEAP9 06/20/2000 DW600 117,412.00 117,412.00 117,412.00 0.00 N/A $86.5625 01/16/2007 $0.00
EICP 12/05/2000 MSCO 266,596.00 266,596.00 266,596.00 0.00 01/02/2006 $65.3375 01/02/2011 $0.00
EICP 12/06/2001 MSCO 173,934.00 173,934.00 173,934.00 0.00 6/30/2006 $57.0258 01/02/2012 $0.00
EICP 12/05/2002 MSCO 162,572.00 162,572.00 162,572.00 0.00 6/30/2006 $42.5579 01/02/2013 $1,209,877.08
EICP 11/28/2003 MSCO 165,360.00 165,360.00 0.00 165,360.00 6/30/2006 $55.4472 01/02/2014 $0.00
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TOTAL STOCK OPTIONS HELD 1,910,948.00 1,910,948.00 1,745,588.00 165,360.00 $11,329,422.45
Exhibit B
Cancellation Events are:
The Executive engages in a Wrongful Solicitation
A "Wrongful Solicitation" occurs upon either of the following events:
while employed or within 180 days following termination of the
Executive's employment, the Executive directly or indirectly hires or attempts
to hire any person who is, or during the 90 days preceding termination of the
Executive's employment was, employed by the Company; or
while employed or within 90 days following termination of the
Executive's employment, the Executive solicits any business of any person or
entity who is or was a customer or client of the Company, or works for, or on
behalf of, any such customer or client, provided, however, that the Executive
had worked on a project or assignment for such customer or client during the
90 days preceding the termination of the Executive's employment.
