Exhibit. 10.i
EMPLOYMENT AGREEMENT
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AGREEMENT by and between Ladder Merger Corporation, a Delaware
corporation (the "Company") and Xxxxxxx X. Xxxxxxxxx (the "Executive"), dated as
of the 8th day of June, 1997.
1. Employment Period. Subject to the consummation of the transactions
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contemplated by the Agreement and Plan of Merger dated as of June 8, 1997 among
BankAmerica Corporation ("Ladder"), the Company, Xxxxxxxxx, Xxxxxxxx & Company
Group, L.L.C. ("Hook"), and Xxxxxxxxx, Xxxxxxxx & Company, Inc. (the "Merger
Agreement"), the Company hereby agrees to employ the Executive, and the
Executive hereby agrees to remain in the employ of the Company subject to the
terms and conditions of this Agreement and the terms of the Special Bonus Award
Agreement (the "Special Bonus Award Agreement") to be entered into between
Ladder and the Executive prior to the Commencement Date (as defined below), for
the period commencing on the closing date of the transactions contemplated by
the Merger Agreement (the "Commencement Date") and ending on the Executive's
seventieth birthday (the "Employment Period").
2. Terms of Employment.
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(a) Position and Duties.
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(i) During the Employment Period, the Executive shall serve
as Chairman of the Company, reporting to the Chief Executive Officer of Ladder
and focusing on business development. In addition, the Executive shall serve on
the Board of Directors of Ladder.
(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 full attention and time during normal business hours to the
business and affairs of the Company and to use the Executive's reasonable best
efforts to perform such responsibilities in a professional manner. It shall not
be a violation of this Agreement for the executive 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 Commencement Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
Commencement Date shall not thereafter be deemed to interfere with the
performance of the Executive's responsibilities to the Company.
(b) Compensation.
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(i) Base Salary. During the Employment Period, the Executive
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shall receive an annual base salary ("Annual Base Salary") of $175,000 payable
in cash. The Annual Base Salary shall be paid no less frequently than in equal
monthly installments.
(ii) Annual Bonus. In addition to Annual Base Salary the
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Executive will be awarded an annual cash bonus (the "Annual Bonus") for each of
calendar years 1997 and 1998 of $4,825,000.
(iii) Funds and Partnerships. Subject to applicable regulatory
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requirements (A) the Executive will be offered the opportunity to invest in
private funds and partnerships which have been established by Hook prior to the
Commencement Date and receive a portion of the incentive fees relating thereto
in accordance with Hook's past practice and (B) the Executive will be offered
the opportunity to invest in private funds and partnerships established after
the Commencement Date by the businesses which are the Hook businesses as of the
Commencement Date (the "Hook Businesses") or by one or more entities acquired or
developed after the Commencement Date by Ladder or any of its affiliates which
are engaged in businesses which are similar to the Hook Businesses, and with
respect to any such private fund or partnership in which the Executive has a
management role, receive a portion of the incentive fees relating thereto, in
each case in accordance with then prevailing standards in Hook's industry.
(iv) Savings and Retirement Plans. During the Employment
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Period, the Executive shall be eligible to participate in existing Hook savings
and retirement plans, practices, policies and programs if such plans, practices,
policies, and programs are continued, or, if not, in all savings and retirement
plans, practices, policies and programs to the extent applicable to other peer
executives of Ladder and its affiliates. For purposes of all such plans, the
Company shall credit the Executive with full credit for all service credited
under comparable Hook plans (including service with Hook prior to the
Commencement Date) for purposes of eligibility to participate and receive
benefits and vesting but not for benefit accruals in any Company retirement
plan.
(v) Welfare and Other Benefit Plans. During the Employment
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Period, to the extent that Hook plans are not continued, the Executive and/or
the Executive's family, as the case may be, shall be eligible for participation
in and shall receive all benefits under welfare, fringe, change of control
protection, vacation and other similar benefit plans, practices, policies and
programs provided by the Company and its affiliated companies (including,
without limitation, medical, prescription, dental, disability, employee life,
group life, accidental death and travel accident insurance plans and programs)
to the extent applicable to other peer executives of the Company and its
affiliated companies. For purposes of all such plans, the Company shall credit
the Executive with full credit for all service credited under the corresponding
Hook benefit plans for purposes of eligibility to participate and receive
benefits and vesting but not for purposes of benefit accruals. With respect to
the Company's welfare
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benefit plans, the Company shall cause any such plan to waive any preexisting
condition exclusions and actively-at-work requirements thereunder with respect
to the Executive and the Executive's eligible dependents and shall ensure that
any covered expenses incurred on or before the Commencement Date shall be taken
into account for purposes of satisfying applicable deductible, coinsurance and
maximum out-of-pocket provisions after the Commencement Date to the extent that
such expenses are taken into account for the benefit of peer executives of the
Company.
(vi) Expenses. During the Employment Period, the Executive
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shall be entitled to receive prompt reimbursement for all reasonable business
expenses incurred by the Executive, in accordance with the policies of the
Company.
(vii) Indemnity. The Executive shall be indemnified by the
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Company against claims arising in connection with the Executive's status as an
employee, officer, director or agent of the Company in accordance with the
Company's indemnity policies for its senior executives, subject to applicable
law. The Company shall purchase insurance for the Executive against such claims
to the extent that such insurance is purchased for similarly situated executives
of Ladder affiliates.
(viii) Vacation. During the Employment Period, the Executive
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shall be entitled to no less than four weeks of paid vacation per year. Any
vacation accrued by the Executive in accordance with Hook's policies prior to
the Commencement Date shall be assumed by the Company and provided by the
Company to the Executive following the Commencement Date in accordance with
Hook's policies.
(ix) Perquisites. The Executive will receive perquisites no less
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favorable than those received by the executives of similar status from the
Company and Ladder.
(c) Employment Location. The Executive's principal place of employment
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shall be located no more than 50 miles from the Executive's principal place of
employment at the Commencement Date.
3. Termination of Employment.
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(a) Death or Disability. The Executive's employment shall terminate
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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 9(b) of this Agreement of its 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
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purposes of this Agreement, "Disability" shall have the meaning set forth in the
Long-Term Disability Plan applicable to the Executive.
(b) Cause. The Company may terminate the Executive's employment
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during the Employment Period for Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) gross misconduct by the Executive in the execution of the
Executive's professional duties which is materially injurious to the Company or
Ladder, or
(ii) a material breach of a material obligation of the Executive
under this Agreement, which is not remedied within 30 days after receipt of
written notice from the Board of Directors of the Company (the "Board")
delivered to the Executive within 90 days of such claimed act or breach
specifically delineating each such claimed act or breach and setting forth the
Company's intentions to terminate the employment of the Executive if such breach
is not remedied (the "Board Notice"); provided, that if the specified breach
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cannot reasonably be remedied within such 30-day period and Executive commences
reasonable steps within such 30-day period to remedy such breach and diligently
continues such steps thereafter until a remedy is effected, such breach shall
not constitute "Cause", provided that such breach is remedied within 60 days
after receipt of written notice from the Board. If the breach is not remedied
within the cure period, notwithstanding Section 3(e), the Date of Termination
shall be the date on which the Executive received the Board Notice. Further, no
breach, act or failure to act on the Executive's part shall constitute "Cause"
if such breach, act or failure to act resulted from the Executive's incapacity
due to physical or mental illness or any such actual or anticipated breach, act
or failure to act resulting from a resignation by the Executive for Good Reason,
or
(iii) conviction of a felony which is materially injurious to the
Company or Ladder.
Notwithstanding the foregoing, the Executive shall not be deemed to
have been terminated for Cause unless and until there shall have been delivered
to the Executive a copy of a resolution duly adopted by a majority of the entire
Board at a meeting of the Board called and held for such purpose (after
reasonable notice to the Executive and an opportunity for the Executive,
together with the Executive's counsel, to be heard before the Board), finding
that in the good faith opinion of the Board, the Executive was guilty of the
conduct set forth in clause (i), (ii) or (iii) of this section and specifying
the particulars thereof.
(c) Good Reason. The Executive's employment may be terminated by the
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Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean a material breach by the Company of a material obligation of the Company
under this Agreement after the Executive has given the Company notice of the
breach within 90 days of the breach and the Company has not remedied the breach
in accordance with the next sentence. A breach described in this clause to
include, without limitation, (A) a detrimental alteration to the terms of the
Executive's employment as described in Section 2 hereof, (B) any reduction in
the
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Executive's Annual Base Salary, Annual Bonus or other awards under plans or
programs described herein or the failure of the Company to pay when due to the
Executive any Annual Base Salary, Annual Bonus or other earned bonus or awards
referred to in this Agreement, (C) the relocation of the Executive's principal
place of employment to any location more than 50 miles from the Executive's
principal place of employment on the Commencement Date, (D) the failure of the
Company to obtain an agreement reasonably satisfactory to the Executive from any
successor to assume and agree to perform this Agreement, as contemplated in
Section 8 hereof or, if the business for which the Executive's services are
principally performed is sold or transferred, the failure of the Company to
obtain such an agreement from the purchaser or transferee of such business or
(E) any termination of the Executive's employment which is not effected pursuant
to the terms of this Agreement which is not remedied within 30 days after
receipt of written notice from the Executive specifically delineating each such
claimed breach and setting forth the Executive's intention to terminate
employment if such breach is not remedied; provided, that if the specified
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breach cannot reasonably be remedied within such 30-day period and the Company
commences reasonable steps within such 30-day period to remedy such breach and
diligently continues such steps thereafter until a remedy is effected, such
breach shall not constitute "Good Reason" provided that such breach is remedied
within 60 days after receipt of written notice. It is understood that the mere
listing of certain of the Company's obligations under the Agreement herein does
not imply that a breach of such obligation is a material breach.
(d) Notice of Termination. Any termination by the Company for Cause,
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or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 9(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) 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) specifies the termination
date (which date, in the case of a termination for Good Reason, 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
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Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date that is one day after the last day of the
cure period, (ii) if the Executive's employment is terminated by the Company
other than for Cause or Disability, or the Executive resigns without Good
Reason, the Date of Termination shall be the date on which the Company or the
Executive notifies the Executive or the Company, respectively, of such
termination and (iii) if the Executive's employment is 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.
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4. Obligations of the Company upon Termination. The Executive agrees
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that the amounts payable under this Section 4 are in lieu of any other claims
the Executive may have with regard to the separation of employment and shall be
the Executive's sole and exclusive remedy for or associated with a separation of
employment. The Executive agrees to execute a general release of claims upon the
receipt of the amounts payable under this Section 4.
(a) Good Reason; Other Than for Cause; Death; Disability. If, during
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the Employment Period, the Company shall terminate the Executive's employment
other than for Cause, including by reason of the Executive's 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 amounts set
forth in clauses A and B below:
A. the sum of (1) the Executive's Annual Base Salary through the
Date of Termination to the extent not theretofore paid, (2) the product of
(x) the Annual Bonus and (y) a fraction (the "Proration Fraction"), the
numerator of which is the number of days in the current calendar year
through the Date of Termination, and the denominator of which is 365, and
(3) any compensation previously deferred by the Executive (together with
any accrued interest or earnings thereon) to the extent not theretofore
paid (the sum of the amounts described in clauses (1), (2) and (3) shall be
hereinafter referred to as the "Accrued Obligations"); and
B. the amount equal to the greater of (1) any unpaid Annual Base
Salary and Annual Bonus payable through December 31, 1998, which amount
shall be discounted to present value at the applicable federal rate, as
defined in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended, and (2) the product of (x) 1.5 and (y) the sum of the Annual Base
Salary and the Annual Bonus; and
(ii) 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 entitled to receive
under any plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies, excluding any severance plan or policy
(such other amounts and benefits shall be hereinafter referred to as the "Other
Benefits").
(iii) to the extent not theretofore paid, the Company shall vest
and pay to the Executive all amounts under the Special Bonus Award Agreement, in
accordance with the terms of such Agreement.
(iv) for eighteen months after the Date of Termination, the
Executive and the Executive's dependents shall continue to be eligible to
participate in the medical,
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dental, health, life and other fringe benefit plans and arrangements applicable
to the Executive immediately prior to the Date of Termination on the same terms
and conditions in effect for the Executive and the Executive's dependents
immediately prior to the Date of Termination.
(b) Cause; Other than for Good Reason. If the Executive's employment
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shall be terminated for Cause or the Executive terminates 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 (x) Accrued Obligations less the amount determined under Section
4(a)(i)A(2) hereof, and (y) Other Benefits, in each case to the extent
theretofore unpaid.
5. Binding Arbitration. Any controversy or claim arising out of or
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relating to this Agreement (including any claims relating to employment or the
termination of employment, whether arising under federal, state or local law and
whether in contract or in tort and including any discrimination or common law
claims, but excluding workers compensation and unemployment insurance) shall at
the request of either party be determined by arbitration. The arbitration shall
be conducted in accordance with the United States Arbitration Act (Title 9,
United States Code), notwithstanding any choice of law provision in this
Agreement, and under the rules of the American Arbitration Association. The
dispute shall be submitted to a single arbitrator to be mutually agreed upon by
the parties. If the parties cannot agree on a single arbitrator, each party
shall appoint one arbitrator who shall then jointly appoint a single arbitrator.
The arbitrator shall give effect to applicable statutes of limitations. Any
controversy concerning whether an issue is arbitrable shall be determined by the
arbitrator. Judgment upon the arbitration award may be entered in any court
having jurisdiction. The institution and maintenance of an action for judicial
relief or pursuit of a provisional or ancillary remedy shall not constitute a
waiver of the right of any party, including the plaintiff, to submit the
controversy or claim to arbitration if any other party contests such action for
judicial relief. The Company agrees to pay the costs of arbitration and to
reimburse the Executive for reasonable expenses incurred as a result of such
arbitration, provided the Executive prevails on at least one material issue in
the arbitration
6. Confidential Information/Noncompetition.
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(a) The Executive acknowledges that the Executive will have knowledge
of certain trade secrets of the Company, including information concerning
customer lists. 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 (provided the Company has been given notice
of and opportunity to challenge or limit the scope of disclosure
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purportedly so required), communicate or divulge any such information, knowledge
or data to anyone other than the Company and those designated by it or to an
attorney retained by the Executive to provide legal advice with respect to this
Section 6 and who has agreed to keep such information confidential.
(b) While employed by the Company, the Executive shall comply with the
rules and policies of the Company, including without limitation the Company's
Code of Conduct and Conditions of Employment and compliance policies; it being
understood that a breach of such rules and policies shall not constitute "Cause"
if such breach does not constitute a material breach of another material
obligation of the Executive hereunder or as described in Section 3(b)(i) or
3(b)(iii). After termination of the Executive's employment with the Company, the
Executive shall comply with those aspects of such rules and policies which apply
to conduct after termination of employment.
(c) The Executive acknowledges that if the Executive were to become
employed by a competing organization, the Executive's new job duties and the
products, services and technology of the competing organization would be so
similar or related to those contemplated by this Agreement that it would be very
difficult for the Executive not to rely on or use the Company's trade secrets.
The Executive further acknowledges that the Executive, and any new employer,
cannot avoid using the trade secret information, due to the fact that even in
the best good faith, the Executive cannot as a practical matter avoid using the
knowledge of the Company's confidential methods and trade secrets in the
Executive's work with a new employer. Accordingly, until December 31, 2000, the
Executive will not, without the written consent of the Company, directly or
indirectly, own, manage, operate, control or participate in the ownership,
management, operation or control of, or be connected as an officer, employee,
partner, director or otherwise with, or have any financial interest in, any
business which engages in any business within a 50-mile radius of any
metropolitan area in which the Executive conducted significant business on
behalf of the Company during the 12-month period immediately preceding the
Termination Date (i) that competes with any business actively conducted in such
area, at the time such engagement is commenced, by the Company and (ii) that is
of the type of business activity in which the Executive was engaged on behalf of
the Company during such 12-month period. Ownership, for personal investment
purposes only, of less than 5% of the voting stock of any publicly held
corporation shall not constitute a violation hereof.
(d) While employed by the Company or any of its affiliates or Hook and
for one year after the Executive's termination of employment, the Executive will
not, directly or indirectly, on behalf of the Executive or any other person,
solicit for employment by other than the Company any person employed by the
Company or its affiliates or Hook at the effective time of the Merger (as
defined in the Merger Agreement) (the "Merger"), nor will the Executive,
directly or indirectly, on behalf of the Executive or any other person, solicit
for employment by other than the Company any person known by the Executive to be
employed at the time by Hook or the Company or its affiliates.
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(e) The provisions of Section 6(c) and (d) shall remain in full force
and effect until the expiration of the period specified herein notwithstanding
the earlier termination of the Executive's employment hereunder.
7. Specific Performance. The Executive acknowledges that a violation
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on the Executive's part of any of the covenants contained in Section 6 hereof
would cause immeasurable and irreparable damage to the Company. Accordingly, the
Executive agrees that the Company shall be entitled to injunctive relief in any
court of competent jurisdiction for any actual or threatened violation of any
such covenant in addition to any other remedies it may have. The Executive
agrees that in the event that any arbitrator or court of competent jurisdiction
shall finally hold that any provision of Section 6 hereof is void or constitutes
an unreasonable restriction against the Executive, the provisions of such
Section 6 shall not be rendered void but shall apply to such extent as such
arbitrator or court may determine constitutes a reasonable restriction under the
circumstances.
8. Successors.
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(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, or any business
of the Company for which the Executive's services are principally performed, 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 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 otherwlse .
9. Miscellaneous.
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(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of California, 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
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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:
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c/x Xxxxxxxxx, Xxxxxxxx &
Company Group, L.L.C.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
If to the Company:
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000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
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) 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.
(d) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(e) The parties agree to treat all amounts paid to the Executive
hereunder as compensation for services. Accordingly, 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.
(f) On and after the Commencement Date, this Agreement shall supersede
any other agreement (other than the Special Bonus Agreement between the Company
and the Executive dated the date hereof and the Merger Agreement), written or
oral, pertaining to the subject matter of this Agreement, including without
limitation all previous compensation guarantees and all agreements with respect
to payments to be made as a result of the transactions contemplated by the
Merger Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
LADDER MERGER SUB
By: /s/ XXXXX XXXXXX
Name: Xxxxx Xxxxxx
EXECUTIVE
By: /s/ XXXXXXX X. XXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxx
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XXXXXXXXX
XXXXXXXX &
COMPANY
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Xxxxxxx X. Xxxxxxxxx
EMPLOYMENT COMPENSATION AND RETENTION INFORMATION
Summary:
Purchase Value/Deferred Compensation 59,460,855
RS&CO. Inc. Value/Deferred Compensation 1,407,000
1997 Annualized Guarantee 5,000,000
1998 Annualized Guarantee 5,000,000
Cash Flow: 1997 1998 1999 2000
---------- ---------- --------- ---------
Guaranteed Salary 175,000 175,000 0 0
Tax Advance, if any * 225,000 0 0 0
Minimum June Bonus 1,187,500 0 0 0
Purchase Value/Deferred Comp 30,934,859 9,508,666 9,508,666 9,508,666
RS&Co. Inc. Value/Deferred Comp 732,000 225,000 225,000 225,000
Minimum December Bonus 3,412,500 4,825,000 0 0
Total Guaranteed Cash Flow 36,666,859 14,733,666 9,733,666 9,733,666
========== ========== ========= =========
* If additional tax advances are paid after the date of this agreement, the
amounts will be subtracted from the appropriate bonus totals.
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BankAmerica Corporation
Xxxxxxx X. Xxxxxxxxx
c/x Xxxxxxxxx, Xxxxxxxx
& Company Group, L.L.C.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxxxxx:
We are pleased to inform you that, subject to the consummation of the
transactions contemplated by the Agreement and Plan of Merger dated as of June
8, 1997 among BankAmerica Corporation ("BAC"), Ladder Merger Corporation (the
"Company"), Xxxxxxxxx, Xxxxxxxx & Company Group, L.L.C., a Delaware limited
liability company ("Hook") and Xxxxxxxxx, Xxxxxxxx & Company, Inc. (the "Merger
Agreement"), in consideration of your remaining in the employ of the Company
after the closing date of the transactions contemplated by the Merger Agreement
(the "Commencement Date"), the Company hereby agrees to pay you a cash retention
bonus (the "Special Retention Bonus"), subject to the terms and conditions set
forth in this letter. Terms herein which are capitalized and not defined herein
shall have the meanings ascribed thereto in the form of employment agreement
that shall be offered to you prior to the Commencement Date pursuant to the
Merger Agreement (the "Employment Agreement") or in the Merger Agreement.
The Special Retention Bonus will total the amount set forth on
Schedule A hereto, vesting ratably on the first, second and third anniversaries
of the Commencement Date. The vested but unpaid portion of the Special Retention
Bonus will be paid out when vested. The unpaid portion of the Special Retention
Bonus shall bear interest at 2% per annum, which shall be payable quarterly on
the date BAC pays dividends on its Common Stock. The Company may reduce the
first payment of the Special Retention Bonus by your liability, if any, pursuant
to Sections 8.2(e) and 10.2 of the Merger Agreement.
If the Company terminates your employment for Disability, the Company
terminates your employment other than for Cause, you terminate your employment
for Good Reason, you terminate employment after you attain age 60 or your
employment terminates by reason of death, the unvested and unpaid portion of
your Special Retention Bonus will be deemed to have vested in full immediately
prior to such termination and such amount shall be paid to you in cash in a lump
sum within 10 days after your termination of employment. If your employment
terminates as the case may be, for any taxable year is examined or challenged,
(ii) in the event of such examination or challenge, BAC shall have the right to
participate, at BAC's expense, in any issue raised therein relating to the
classification of the Companies or any of their Subsidiaries as a partnership or
S corporation, as the case may be, for any taxable year, and (iii) you shall not
settle such issue without the consent of BAC.
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Without limitation to any other covenant or agreement which by its terms
survives the Closing or which contemplates the possibility of action or inaction
following the Closing, this covenant shall survive the Closing.
C. Owner Representative. You agree that (i) all determinations
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made, or actions taken, by the Owner Representative who shall be Xxxxxxx X.
XxXxxxxxx (or, if Xxxxxxx X. XxXxxxxxx is unable or unwilling to serve in that
capacity, Xxxxxx X. Xxxxx) shall be conclusive and binding on you, (ii) the
conclusive and binding nature of any determination made, or action taken, by an
Owner Representative will not be affected by any determination made, or action
taken, by any subsequent Owner Representative and (iii) there may be only one
Owner Representative at any given time. You agree to pay a pro rata share
(based upon your membership interest in Hook) of any expenses incurred by the
Owner Representative.
Please indicate your agreement with the foregoing by signing and
returning the enclosed copy of this letter.
Very truly yours,
BANKAMERICA CORPORATION
By: /s/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
ACCEPTED AND AGREED.
/s/ XXXXXXX X. XXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxx
13
SCHEDULE A
SPECIAL RETENTION BONUS AGREEMENT
Special Retention
Name Bonus Amount
---- ----------------
Xxxxxxx X. Xxxxxxxxx $29,200,997
14
