EXHIBIT 99(e)(4)
EMPLOYMENT AGREEMENT
AGREEMENT by and between Credit Suisse First Boston Corp., a
Delaware corporation (the "Company") and Xxx X. Xxxx (the "Executive") dated as
of the 30th day of August, 2000.
The Company has determined that it is in the best interests of the
Company and its shareholders to assure that Xxxxxxxxx, Lufkin & Xxxxxxxx, Inc.,
a Delaware corporation ("DLJ") will have the continued dedication of the
Executive pending the merger of Credit Suisse Group and DLJ (the "Merger")
pursuant to the Agreement and Plan of Merger dated as of August 30, 2000 and to
provide the surviving corporation after the Merger with continuity of
management.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EFFECTIVE DATE. The "Effective Date" shall mean the effective
date of the Merger.
2. EMPLOYMENT PERIOD. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to enter into the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on December 31, 2003 (the
"Employment Period"). Thereafter, until December 31, 2006, the Executive shall
serve as a consultant to the Company (the "Consulting Period").
3. TERMS OF EMPLOYMENT. (a) POSITION AND DUTIES. (i) (A) During the
Employment Period, the Executive shall serve as Chairman of the CSFB business
unit reporting to the Chief Executive Officer of the business unit, with such
duties and responsibilities as are requested by the Company and are consistent
with such position and (B) the Executive's services shall be performed in
Manhattan, New York or, if the Company should move its Manhattan offices to a
new location, then, at the Executive's option, in the new location. During the
Consulting Period, the Executive shall serve as a senior consultant to the
Company and shall make himself available to the Company as mutually agreed by
the parties.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote substantially all of his attention and time during normal business
hours to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive, subject to the Company's policies on outside
business activities, to (A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (C) manage personal investments, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective Date
shall not thereafter be deemed to interfere with the performance of the
Executive's responsibilities to the Company, as long as such conduct is not in
violation of the Company's policies on outside business activities.
(b) COMPENSATION. (i) BASE SALARY. During the Employment Period,
the Executive shall receive an annual base salary ("Annual Base Salary") of no
less than the annual base salary paid to the Chief Executive Officer of the CSFB
business unit.
(ii) ANNUAL BONUS. For calendar year 2000, Executive shall
receive an annual bonus (the "2000 Bonus") of no less than the annual bonus paid
to the Executive with respect to calendar year 1999 as set forth on Schedule A
hereto, which bonus shall be paid in accordance with the Company's practices.
With respect to calendar years 2001, 2002 and 2003, the Executive shall receive
an annual bonus ("Annual Bonus") in an amount such that the sum of his Annual
Base Salary and the Annual Bonus is equal to the average of the sum of his
annual base salary, annual bonus and long-term incentive awards (whether paid or
deferred) in respect of calendar years 1998, 1999, and 2000 (the "Guaranteed
Bonus") as set forth on the Schedule A. The Guaranteed Bonus shall be paid in
accordance with the Company's practices for similarly situated executives.
(iii) LONG-TERM INCENTIVE AWARD. With respect to calendar
year 2000, the Executive shall receive a long-term incentive award as set forth
on Schedule A based on the same per unit value of awards to other DLJ
participants. The long-term incentive award shall vest and be payable on July 1,
2002. All deferrals and payments of prior long-term incentive awards shall be
continued in accordance with their terms, provided that no such award shall be
accelerated as a result of the consummation of the Merger.
(iv) DEFERRAL. A portion of the annual bonus in any year
will be deferred pursuant to the terms of the Credit Suisse Group International
Share Plan, provided that, with respect to the year 2000, the award under the
2000 Long Term Incentive Plan shall be considered to be deferred compensation
and shall therefore reduce the amount that would otherwise have been deferred
pursuant to the Share Plan.
(v) RETENTION AWARD. On the Effective Date, the Executive
shall receive a retention award of 1.5 times the Guaranteed Bonus as set forth
on Schedule A hereto (the "Retention Award"). The Retention Award will be paid
in registered shares of Credit Suisse Group common stock (the "Parent Shares")
valued as of the Effective Date on the basis of the average for the five trading
days up to and including the Effective Date of the closing sale price of Parent
Shares, on a spot basis, on each such day or, if no such closing sale takes
place on any such day, the average of the closing bid and asked prices thereof
on such day, in each case as officially reported on the Swiss Exchange. The
Retention Award shall vest in three equal installments on July 1, 2001, July 1,
2002 and July 1, 2003. Upon vesting of a portion of a Retention Award the
Company shall cause the appropriate number of Parent Shares to be delivered to
the Executive.
(vi) OTHER EMPLOYEE BENEFIT PLANS. During the Employment
Period, except as otherwise expressly provided herein, the Executive shall be
entitled to participate in all
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employee benefit, welfare and other plans, practices, policies and programs in
accordance with their respective terms and if generally available to senior
executives of the Company on a basis no less favorable than that provided to
such senior executives. During the Employment Period and the Consulting Period,
the Company shall provide the Executive with tax and investment advisory
services through the existing internal provider on a basis no less favorable
than those provided to the Executive immediately prior to the date hereof.
During the Employment Period and the Consulting Period, the Company shall
provide the Executive with a car reasonably acceptable to the Executive and
driver at the Company's expense. The Company shall continue to maintain at
Executive's expense (through reduction on pre-tax basis of the Guaranteed Bonus
or the Consulting Fee, as appropriate) the current Flexjet lease for an aircraft
until the end of the current lease term (five years).
(vii) EXPENSES. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the Company's policies.
(viii) OFFICE AND SUPPORT STAFF. During the Employment Period,
the Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments ("Office Space") as provided generally at any
time thereafter with respect to other peer executives of the Company and its
affiliated companies and shall be provided with secretarial and administrative
assistance on the same basis as provided to him immediately prior to the
Effective Date. The Company shall continue to provide the Executive with an
office reasonably acceptable to the Executive and secretarial assistance after a
termination of employment, for as long as Executive shall require it.
(ix) VACATION. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the plans, policies,
programs and practices of the Company and its affiliated companies as in effect
with respect to the senior executives of the Company.
(x) CONSULTING PERIOD. During the Consulting Period, the
Executive shall be paid an annual consulting fee of $5 million, payable monthly
in advance (the "Consulting Fee"). The Company shall be obligated to make
payment of the Consulting Fee notwithstanding a prior termination of the
Executive's employment by the Company without Cause or by the Executive for Good
Reason. In the event the Executive's employment is terminated for any other
reason, the Company shall have no obligation to pay the Consulting Fee.
(xi) STOCK OPTIONS. The Executive agrees not to exercise any
stock options to acquire DLJ common stock until after the Effective Date and
agrees to use his best efforts to obtain the commitment of other senior
executives of DLJ to refrain from exercising their stock options until such
time.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The
Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), it may give to the Executive
written notice in accordance with Section 11(b) of this Agreement of its
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intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company on a full-time basis for 180
consecutive business days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the Executive's
legal representative.
(b) CAUSE. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) the continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Executive by the Executive Board or the Chief Executive Officer of the CSFB
business unit which specifically identifies the manner in which the Board or
Chief Executive Officer believes that the Executive has not substantially
performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal,
dishonest or fraudulent conduct or gross misconduct which is materially and
demonstrably injurious to the Company or its reputation or to any clients or
customers of the Company, or
(iii) commission of a felony or guilty or nolo contendere plea
by the Executive with respect thereto, or
(iv) a material breach by the Executive of this Agreement,
after notice of such breach and a reasonable opportunity to cure, or
(v) a violation in any material respect of any policy of the
Company applicable to the Executive which causes or may cause serious harm to
the Company, or
(vi) a material violation of any regulatory policies
applicable to the Executive.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company or was
done or omitted to be done with reckless disregard to the consequences. Any act,
or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Executive Board of the CSFB business unit or upon the
instructions of the Chief Executive Officer or a senior officer of the CSFB
business unit or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company.
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(c) GOOD REASON. The Executive's employment may be terminated by
the Executive for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean in the absence of a written consent of the Executive:
(i) the assignment to the Executive of any duties materially
inconsistent with the Executive's position (including status, offices, titles
and reporting requirements), duties or responsibilities as contemplated by
Section 3(a) of this Agreement, or any other material action by the Company
which is materially inconsistent with or materially reduces such position,
duties or responsibilities;
(ii) any failure by the Company to comply with any of the
provisions of Section 3(b) of this Agreement;
(iii) the Company's requiring the Executive to be based at
any office or location other than that provided in Section 3(a)(i)(B) hereof;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement;
or
(v) any failure by the Company to comply with and satisfy
Section 10(c) of this Agreement.
Notwithstanding the forgoing, the Executive shall not be considered to have Good
Reason to terminate this Agreement unless and until he gives the Company written
notice of the circumstances constituting the Good Reason and a reasonable
opportunity to cure.
(d) NOTICE OF TERMINATION. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 11(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein within 30 days of such notice, as the case may
be, (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination and (iii) if the Executive's
employment is
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terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or the Disability Effective Date, as the case
may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) GOOD REASON;
OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the
Company shall terminate the Executive's employment other than for Cause, death
or Disability or the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofore paid,
and (2) the product of (x) the Guaranteed Bonus and (y) a fraction,
the numerator of which is the number of days in the fiscal year in
which the Date of Termination occurs through the Date of
Termination, and the denominator of which is 365, in each case to
the extent not theretofore paid (the sum of the amounts described in
clauses (1) and (2), shall be hereinafter referred to as the
"Accrued Obligations"); and
B. the amount equal to the product of (1) the number of
months and portions thereof from the Date of Termination until the
end of Employment Period, divided by twelve and (2) the Guaranteed
Bonus; and
(ii) for the remainder of the Executive's life and that of
his spouse, the Company shall continue to provide medical benefits to the
Executive and his spouse and dependents on the same basis such benefits were
provided to the Executive immediately prior to the Effective Date (collectively
"Medical Benefits");
(iii) the Retention Award and any unvested long-term incentive
award or other incentive awards, including unvested stock options (collectively,
"Retention and Incentive Awards") shall vest immediately; and
(iv) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliated companies through the Date of Termination (such
other amounts and benefits shall be hereinafter referred to as the "Other
Benefits").
(b) DEATH. If the Executive's employment is terminated by reason
of the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for payment of Accrued Obligations and the
timely payment or provision of Other Benefits. In addition, the Retention and
Incentive Awards shall vest immediately. Accrued Obligations shall be paid to
the Executive's estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as utilized in this Section 5(b) shall
include death benefits as in effect on the date of the Executive's death with
respect to senior executives of the Company and their beneficiaries and the
continued provision of Medical Benefits to the Executive's spouse and
dependents.
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(c) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits. In addition, the Retention and Incentive Awards shall vest
immediately. Accrued Obligations shall be paid to the Executive in a lump sum in
cash within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as utilized in this Section 5(c) shall
include, and the Executive shall be entitled after the Disability Effective Date
to receive, disability and other benefits as in effect at any time thereafter
generally with respect to senior executives of the Company and the continued
provision of Medical Benefits to the Executive, spouse and dependents.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause or the Executive terminates his
employment without Good Reason during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other than the
obligation to pay to the Executive (w) his Annual Base Salary through the Date
of Termination, (x) provision of Medical Benefits to the Executive, his spouse
and dependents, and (y) Other Benefits, in each case to the extent theretofore
unpaid.
(e) AFTER THE EMPLOYMENT PERIOD. If the Executive's employment
shall terminate for any reason following the Employment Period, the Company
shall provide the Medical Benefits to the Executive, his spouse and dependents
and Other Benefits, to the extent theretofore unpaid.
6. NON-EXCLUSIVITY OF RIGHTS. Except as specifically provided,
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any plan, program, policy or practice provided by the
Company or any of its affiliated companies and for which the Executive may
qualify, nor, subject to Section 11(f), shall anything herein limit or otherwise
affect such rights as the Executive may have under any contract or agreement
with the Company or any of its affiliated companies. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with the Company or
any of its affiliated companies at or subsequent to the Date of Termination
shall be payable in accordance with such plan, policy, practice or program or
contract or agreement except as explicitly modified by this Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement shall not be affected by any set-offs other than
of amounts payable under 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 to the Executive under any of the provisions of this
Agreement and, such amounts shall not be reduced whether or not the Executive
obtains other employment.
8. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any addi-
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tional payments required under this Section 8) (a "Payment") would be subject to
the excise tax imposed by Section 4999 of the Code or any interest or penalties
are incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 8(c), all determinations
required to be made under this Section 8, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by KPMG Peat
Marwick LLP or such other certified public accounting firm reasonably acceptable
to the Executive as may be designated by the Company (the "Accounting Firm")
which shall provide detailed supporting calculations both to the Company and the
Executive within 15 business days of the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is requested by the
Company. All fees and expenses of the Accounting Firm shall be borne solely by
the Company. Any Gross-Up Payment, as determined pursuant to this Section 8,
shall be paid by the Company to the Executive within five days of (i) the later
of the due date for the payment of any Excise Tax, and (ii) the receipt of the
Accounting Firm's determination. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive unless substantial authority under
the Code exists to the contrary or a ruling is obtained from the Internal
Revenue Service supporting a contrary view. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 8(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive. The previous sentence shall
apply MUTATIS MUTANDIS to any overpayment of a Gross-Up Payment.
(c) The Executive shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
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(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Section 8(c), the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of Section 8(c)) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 8(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
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9. CONFIDENTIAL INFORMATION; NONCOMPETITION; NONSOLICITATION. (a)
The Executive shall hold in a fiduciary capacity for the benefit of the Company
all secret or confidential information, knowledge or data relating to the
Company or any of its affiliated companies, and their respective businesses,
which shall have been obtained by the Executive during the Executive's
employment by the Company or any of its affiliated companies and which shall not
be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). After
termination of the Executive's employment with the Company, the Executive shall
not, without the prior written consent of the Company or as may otherwise be
required by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.
(b) Executive agrees that, during the actual term of Executive's
employment hereunder and during the Consulting Period and for a period of one
year following the date on which Executive's employment or consulting
relationship hereunder is actually terminated (the "Protected Period"),
Executive will not, without the written consent of the Company, engage in any
business of, or enter the employ of, or have any interest in, directly or
indirectly, any other person, firm, corporation or other entity engaged in any
business of the Company. Nothing herein shall restrict Executive from owning 2%
or less of the outstanding securities of any corporation or other entity whose
securities are listed on any national securities exchange or traded
over-the-counter, if Executive has no other connection or relationship with the
issuer of such securities. During the Protected Period, the Executive agrees not
directly or indirectly to solicit for employment any person employed by the
Company or its affiliates or solicit or interfere with the relationship between
the Company or its affiliates and any client or customer of the Company or its
affiliates at the time of his termination of employment or consulting
relationship or six months prior thereto.
(c) In the event of a breach or threatened breach of this Section
9, the Executive agrees that the Company shall be entitled to injunctive relief
in a court of appropriate jurisdiction to remedy any such breach or threatened
breach, the Executive acknowledges that damages would be inadequate and
insufficient.
(d) Any termination of the Executive's employment or of this
Agreement shall have no effect on the continuing operation of this Section 9.
10. SUCCESSORS. (a) This Agreement is personal to the Executive
and without the prior written consent of the Company shall not be assignable by
the Executive otherwise 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 legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
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hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
11. MISCELLANEOUS. (a) 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. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
IF TO THE EXECUTIVE: Xxxxxxxxx, Xxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
IF TO THE COMPANY: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Director of Human
Resources
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c)(i)-(v) of this Agreement, or the right of the Company
to terminate the Executive's employment for Cause pursuant to Section
4(b)(i)-(vi) of this Agreement, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
(f) From and after the Effective Date this Agreement shall
supersede any other employment, severance or change of control agreement between
the parties with respect to the subject matter hereof, except as expressly
provided herein.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from its Board of Directors, the Company
has caused these presents to be executed in its name on its behalf, all as of
the day and year first above written.
/s/ Xxx X. Xxxx
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XXX X. XXXX
CREDIT SUISSE FIRST BOSTON CORP.
By /s/ Xxxxx X. Xxxxx
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