EXHIBIT 10.9
Form of Cash Award Agreement
____________, 2003
Employee Name
Address
City, State
Dear [Employee]:
As you know, human capital is critical to a financial services
business, and the success of Xxxxx Xxxxxxx Companies (the "Company") is
dependent upon our ability to retain highly skilled and motivated employees,
like you, who embody our Guiding Principles. In order to better retain you, and
to better provide you with fair and equitable treatment in connection with the
Distribution (as defined in EXHIBIT A), we are providing you with this letter
(the "Cash Award Letter"). The Cash Award Letter will become effective on the
later of the Distribution Date (as defined in EXHIBIT A) or the date the
Compensation Committee of the Board of Directors of the Company (the
"Committee") approves the Cash Award Letter. In the event that the Distribution
Date does not occur or the Committee does not approve the Cash Award Letter, the
Cash Award Letter shall be null and void and of no further force and effect.
Capitalized terms not otherwise defined in this Cash Award Letter are defined in
EXHIBIT A to this Cash Award Letter.
This Cash Award Letter provides you with a financial incentive to
remain working for the Company after the Distribution Date in the form of a cash
bonus in the amount set forth on SCHEDULE A (the "Cash Award"), which shall be
payable to you as follows: (i) 50% of the Cash Award shall be paid to you on a
date determined by the Committee but in no event later than 120 days after the
Distribution Date (such date, the "Initial Payment Date") and (ii) the remaining
50% of the Cash Award shall be paid in four equal installments on each of the
first four anniversaries of the Initial Payment Date (the Initial Payment Date
and each such anniversary, a "Payment Date"), subject to your continued
employment with the Company (or one of its subsidiaries) through each applicable
Payment Date.
Notwithstanding the foregoing, in the event that your employment is
terminated (1) by reason of your death or Disability or (2) by the Company
without Cause during the 24-month period following a Change in Control, the
Company will continue to pay to you (or your beneficiaries, as applicable) the
Cash Award on each applicable Payment Date in accordance with the schedule set
forth in the immediately preceding paragraph, notwithstanding the prior
termination of your employment with the Company (or one of its subsidiaries). In
addition, notwithstanding the foregoing, in the event that you are eligible for
Retirement, the Company will pay to you the Cash Award on each applicable
Payment Date in accordance with the schedule set forth in the immediately
preceding paragraph, regardless of whether you remain employed with the Company
(or one of its subsidiaries) on each applicable Payment Date. All payments of
the Cash Award shall be made without interest or earnings credit thereon.
1
You hereby acknowledge that (i) for purposes of any stock option or
other equity based compensation award of U.S. Bancorp or its subsidiaries held
by you as of immediately prior to the Distribution, the Distribution shall
constitute a termination of your employment with U.S. Bancorp and its
subsidiaries and affiliates and, (ii) with respect to any such options and
awards that, pursuant to their terms, terminate within 90 days of a termination
of your employment, you shall have no further rights whatsoever after the
expiration of the 90 day period following the Distribution. U.S. Bancorp shall
be an intended third party beneficiary to this Cash Award Letter.
This Cash Award Letter shall be binding upon any successor of the
Company, or its businesses (whether direct or indirect, by purchase, merger,
consolidation, sale of assets or otherwise), in the same manner and to the same
extent that we would be obligated under this Cash Award Letter if no succession
had taken place.
This Cash Award Letter shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without reference to its
conflict of law rules. All payments and benefits hereunder are subject to
withholding for applicable income and payroll taxes or otherwise as required by
law.
We look forward to a very promising future for Xxxxx Xxxxxxx as a
stand-alone entity. In order to be eligible to receive the Cash Award, it is
important that you sign this Cash Award Letter and return it to Xxxxxx Xxxxxxx,
Managing Director, Human Resources at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000 no later than __________.
Very truly yours,
Xxxxxx X. Xxxx
Acknowledged and Agreed:
----------------------
2
SCHEDULE A
Cash Award. [ ]
----------
3
EXHIBIT A
"Cause" shall mean (i) your willful and continued failure to perform
substantially your duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to you by the Company that
specifically identifies the manner in which the Company believes that you have
not substantially performed your duties, (ii) the willful engaging by you in
illegal conduct or gross misconduct that is materially and demonstrably
injurious to the Company or (iii) your conviction of, or plea of NOLO CONTENDERE
to, a felony.
"Change in Control" shall mean a Change in Control within the meaning of Section
7(b) of the Company's 2003 Long-Term Incentive Plan that occurs after the
Distribution Date.
"Disability" shall have the meaning set forth in an Individual Agreement. If you
are not party to an Individual Agreement, "Disability" shall have the meaning
set forth in the Company's long-term disability plan as in effect after the
Distribution Date.
"Distribution" shall have the meaning set forth in the Separation and
Distribution Agreement.
"Distribution Date" shall have the meaning set forth in the Separation and
Distribution Agreement.
"Individual Agreement" means any individual employment agreement between the
Company or any of its subsidiaries and you as in effect after the Distribution
Date.
"Retirement" means the date that you attain age 50 and have accrued 10 years of
service with the Company (including, for this purpose, any service with U.S.
Bancorp).
"Separation and Distribution Agreement" means the Separation and Distribution
Agreement by and between U.S. Bancorp and the Company dated as of [ ], included
as Exhibit [ ] to Amendment [5] of the Company's Registration Statement on Form
10 filed with the SEC.
4
Form of Cash Award Agreement
____________, 2003
Employee Name
Address
City, State
Dear [Employee]:
As you know, human capital is critical to a financial services
business, and the success of Xxxxx Xxxxxxx Companies (the "Company") is
dependent upon our ability to retain highly skilled and motivated employees,
like you, who embody our Guiding Principles. In order to better retain you, in
connection with the Distribution (as defined in EXHIBIT A), we are providing you
with this letter (the "Cash Award Letter"). The Cash Award Letter will become
effective on the later of the Distribution Date (as defined in EXHIBIT A) or the
date the Compensation Committee of the Board of Directors of the Company (the
"Committee") approves the Cash Award Letter. In the event that the Distribution
Date does not occur or the Committee does not approve the Cash Award Letter, the
Cash Award Letter shall be null and void and of no further force and effect.
Capitalized terms not otherwise defined in this Cash Award Letter are defined in
EXHIBIT A to this Cash Award Letter.
This Cash Award Letter provides you with a financial incentive to
remain working for the Company after the Distribution Date in the form of a cash
bonus in the amount set forth on SCHEDULE A (the "Cash Award"), which shall be
payable to you on a date determined by the Committee but in no event later than
120 days after the Distribution Date (such date, the "Payment Date"), subject to
your continued employment with the Company (or one of its subsidiaries) through
the Payment Date.
Notwithstanding the foregoing, in the event that your employment is
terminated (1) by reason of your death or Disability or (2) by the Company
without Cause following a Change in Control, the Company will pay to you (or
your beneficiaries, as applicable) the Cash Award on the Payment Date,
notwithstanding the prior termination of your employment with the Company (or
one of its subsidiaries). In addition, notwithstanding the foregoing, in the
event that you are eligible for Retirement, the Company will pay to you the Cash
Award on the Payment Date, regardless of whether you remain employed with the
Company (or one of its subsidiaries) on the Payment Date. All payments of the
Cash Award shall be made without interest or earnings credit thereon.
5
You hereby acknowledge that (i) for purposes of any stock option or
other equity based compensation award of U.S. Bancorp or its subsidiaries held
by you as of immediately prior to the Distribution, the Distribution shall
constitute a termination of your employment with U.S. Bancorp and its
subsidiaries and affiliates and, (ii) with respect to any such options and
awards that, pursuant to their terms, terminate within 90 days of a termination
of your employment, you shall have no further rights whatsoever after the
expiration of the 90 day period following the Distribution. U.S. Bancorp shall
be an intended third party beneficiary to this Cash Award Letter.
This Cash Award Letter shall be binding upon any successor of the
Company, or its businesses (whether direct or indirect, by purchase, merger,
consolidation, sale of assets or otherwise), in the same manner and to the same
extent that we would be obligated under this Cash Award Letter if no succession
had taken place.
This Cash Award Letter shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without reference to its
conflict of law rules. All payments and benefits hereunder are subject to
withholding for applicable income and payroll taxes or otherwise as required by
law.
We look forward to a very promising future for Xxxxx Xxxxxxx as a
stand-alone entity. In order to be eligible to receive the Cash Award, it is
important that you sign this Cash Award Letter and return it to Xxxxxx Xxxxxxx,
Managing Director, Human Resources at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000 no later than __________.
Very truly yours,
Xxxxxx X. Xxxx
Acknowledged and Agreed:
----------------------
6
SCHEDULE A
Cash Award. [ ]
----------
7
EXHIBIT A
"Cause" shall mean (i) your willful and continued failure to perform
substantially your duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to you by the Company that
specifically identifies the manner in which the Company believes that you have
not substantially performed your duties, (ii) the willful engaging by you in
illegal conduct or gross misconduct that is materially and demonstrably
injurious to the Company or (iii) your conviction of, or plea of NOLO CONTENDERE
to, a felony.
"Change in Control" shall mean a Change in Control within the meaning of Section
7(b) of the Company's 2003 Long-Term Incentive Plan that occurs after the
Distribution Date.
"Disability" shall have the meaning set forth in an Individual Agreement. If you
are not party to an Individual Agreement, "Disability" shall have the meaning
set forth in the Company's long-term disability plan as in effect after the
Distribution Date.
"Distribution" shall have the meaning set forth in the Separation and
Distribution Agreement.
"Distribution Date" shall have the meaning set forth in the Separation and
Distribution Agreement.
"Individual Agreement" means any individual employment agreement between the
Company or any of its subsidiaries and you as in effect after the Distribution
Date.
"Retirement" means the date that you attain age 50 and have accrued 10 years of
service with the Company (including, for this purpose, any service with U.S.
Bancorp).
"Separation and Distribution Agreement" means the Separation and Distribution
Agreement by and between U.S. Bancorp and the Company dated as of [ ], included
as Exhibit [ ] to Amendment [5] of the Company's Registration Statement on
Form 10 filed with the SEC.
8
Form of Cash Award Agreement
____________, 2003
Employee Name
Address
City, State
Dear [Employee]:
As you know, human capital is critical to a financial services
business, and the success of Xxxxx Xxxxxxx Companies (the "Company") is
dependent upon our ability to retain highly skilled and motivated employees,
like you, who embody our Guiding Principles. In order to better retain you, in
connection with the Distribution (as defined in EXHIBIT A), we are providing you
with this letter (the "Cash Award Letter"). The Cash Award Letter will become
effective on the later of the Distribution Date (as defined in EXHIBIT A) or the
date the Compensation Committee of the Board of Directors of the Company (the
"Committee") approves the Cash Award Letter. In the event that the Distribution
Date does not occur or the Committee does not approve the Cash Award Letter, the
Cash Award Letter shall be null and void and of no further force and effect.
Capitalized terms not otherwise defined in this Cash Award Letter are defined in
EXHIBIT A to this Cash Award Letter.
This Cash Award Letter provides you with a financial incentive to
remain working for the Company after the Distribution Date in the form of a cash
bonus in the amount set forth on SCHEDULE A (the "Cash Award"), which shall be
payable to you as follows: (i) 25% of the Cash Award shall be paid to you on a
date determined by the Committee but in no event later than 120 days after the
Distribution Date (such date, the "Initial Payment Date") and (ii) the remaining
75% of the Cash Award shall be paid in three equal installments on each of the
first three anniversaries of the Initial Payment Date (the Initial Payment Date
and each such anniversary, a "Payment Date"), subject to your continued
employment with the Company (or one of its subsidiaries) through each applicable
Payment Date.
Notwithstanding the foregoing, in the event that your employment is
terminated (1) by reason of your death or Disability or (2) by the Company
without Cause during the 24-month period following a Change in Control, the
Company will continue to pay to you (or your beneficiaries, as applicable) the
Cash Award on each applicable Payment Date in accordance with the schedule set
forth in the immediately preceding paragraph, notwithstanding the prior
termination of your employment with the Company (or one of its subsidiaries). In
addition, notwithstanding the foregoing, in the event that you are eligible for
Retirement, the Company will pay to you the Cash Award on each applicable
Payment Date in accordance with the schedule set forth in the immediately
preceding paragraph, regardless of whether you remain employed with the Company
(or one of its subsidiaries) on each applicable Payment Date. All payments of
the Cash Award shall be made without interest or earnings credit thereon.
You hereby acknowledge that (i) for purposes of any stock option or
other equity based compensation award of U.S. Bancorp or its subsidiaries held
by you as of immediately prior to the Distribution, the Distribution shall
constitute a termination of your employment with U.S. Bancorp and its
subsidiaries and affiliates and, (ii) with respect to any such options and
awards
9
that, pursuant to their terms, terminate within 90 days of a termination
of your employment, you shall have no further rights whatsoever after the
expiration of the 90 day period following the Distribution. U.S. Bancorp shall
be an intended third party beneficiary to this Cash Award Letter.
This Cash Award Letter shall be binding upon any successor of the
Company, or its businesses (whether direct or indirect, by purchase, merger,
consolidation, sale of assets or otherwise), in the same manner and to the same
extent that we would be obligated under this Cash Award Letter if no succession
had taken place.
This Cash Award Letter shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without reference to its
conflict of law rules. All payments and benefits hereunder are subject to
withholding for applicable income and payroll taxes or otherwise as required by
law.
We look forward to a very promising future for Xxxxx Xxxxxxx as a
stand-alone entity. In order to be eligible to receive the Cash Award, it is
important that you sign this Cash Award Letter and return it to Xxxxxx Xxxxxxx,
Managing Director, Human Resources at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000 no later than__________.
Very truly yours,
Xxxxxx X. Xxxx
Acknowledged and Agreed:
----------------------
10
SCHEDULE A
Cash Award. [ ]
----------
11
EXHIBIT A
"Cause" shall mean (i) your willful and continued failure to perform
substantially your duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to you by the Company that
specifically identifies the manner in which the Company believes that you have
not substantially performed your duties, (ii) the willful engaging by you in
illegal conduct or gross misconduct that is materially and demonstrably
injurious to the Company or (iii) your conviction of, or plea of NOLO CONTENDERE
to, a felony.
"Change in Control" shall mean a Change in Control within the meaning of Section
7(b) of the Company's 2003 Long-Term Incentive Plan that occurs after the
Distribution Date.
"Disability" shall have the meaning set forth in an Individual Agreement. If you
are not party to an Individual Agreement, "Disability" shall have the meaning
set forth in the Company's long-term disability plan as in effect after the
Distribution Date.
"Distribution" shall have the meaning set forth in the Separation and
Distribution Agreement.
"Distribution Date" shall have the meaning set forth in the Separation and
Distribution Agreement.
"Individual Agreement" means any individual employment agreement between the
Company or any of its subsidiaries and you as in effect after the Distribution
Date.
"Retirement" means the date that you attain age 50 and have accrued 10 years of
service with the Company (including, for this purpose, any service with U.S.
Bancorp).
"Separation and Distribution Agreement" means the Separation and Distribution
Agreement by and between U.S. Bancorp and the Company dated as of [ ], included
as Exhibit [ ] to Amendment [5] of the Company's Registration Statement on Form
10 filed with the SEC.
12
