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Exhibit 10(f)
November 5, 1997
X. Xxxxxx Xxxxx
Re: Consulting Agreement
Dear Xxxxxx:
This letter confirms the terms and conditions of your engagement as a
consultant to assist The Bank of New York Company, Inc. ("BNY Co.") in tasks
assigned pursuant to this agreement. X. Xxxxxx Xxxxx is hereinafter referred
to as "Consultant".
1. Services. Consultant agrees to render such services to BNY Co.,
its subsidiaries or affiliates as the Chairman of BNY Co. shall from time to
time request (the "Services"). In rendering Services hereunder, Consultant
shall report to the Chairman of BNY Co. Consultant, however, shall not be
obligated to devote more than 25% of normal business hours throughout the
term of this agreement to the rendering of Services.
2. Term. This agreement shall be effective immediately after
Consultant separates from service as an employee of The Bank of New York
("BNY") (the "Effective Date") and, subject to Sections 9 and 10, shall
terminate five (5) years thereafter.
3. Consulting Fee. Consultant shall be entitled to a fee for
Services rendered during the term of this agreement in the amount of
USD$1,500,000 (the "Consulting Fee"), payable by BNY Co. in annual
installments pursuant to the following schedule:
Year 1 $500,000
Year 2 400,000
Year 3 300,000
Year 4 200,000
Year 5 100,000.
The installment for Year 1 shall be payable as soon as practicable after
the Effective Date. The installment for each of Years 2 through 5 shall
be payable at the beginning of such year (i.e., the anniversary of the
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Effective Date). Consultant shall be responsible for the payment of
applicable taxes levied or based upon any portion of the Consulting Fee
paid by BNY Co., including SECA and federal, state and local income taxes.
4. Facilities. BNY Co. shall provide Consultant with an executive
secretary, office, car and chauffeur as he shall from time to time deem
appropriate until the first to occur of Consultant's death or termination for
Cause (as defined in Section 9).
5. Reimbursement for Expenses. BNY Co. shall reimburse Consultant
for all reasonable costs and expenses incurred by Consultant in connection
with the rendering of Services hereunder. Consultant shall periodically
submit invoices to BNY Co. for reimbursement of costs and expenses incurred.
6. Confidential Information. Consultant shall hold all Confidential
Information (defined below) at all times in trust and confidence for BNY Co.,
its subsidiaries and affiliates from the time Consultant acquires such
Confidential Information. Consultant shall not use any such Confidential
Information for his own benefit or for the benefit of any other person and,
except as authorized by BNY Co. or its designee in writing, Consultant shall
not disclose to any person or entity any such Confidential Information. Upon
termination of this agreement, if requested by BNY Co. or its designee,
Consultant shall deliver to BNY Co. originals and copies of all reports,
notes and work papers, documents, correspondence, manuals, tapes and any and
all other materials in his possession or under his control which may contain
confidential information. As used herein, Confidential Information means any
and all information of a confidential or otherwise non-public nature obtained
by Consultant from, or disclosed to Consultant by BNY Co. or any of its
subsidiaries or affiliates or any of its or their directors, officers,
employees, agents or representatives relating in any way to past, present or
future business affairs, financial information, methods or processes of BNY
Co. or any of its subsidiaries or affiliates. Consultant's obligations under
this Section 6 shall survive any termination or expiration of this agreement.
7. Non-Competition. During the term of this agreement, Consultant
shall not, directly or indirectly, own, manage, operate, join, control or
otherwise carry on, participate in the management, operation or control of,
or be engaged in or concerned with, any commercial bank which is or is seeking
to become competitive with BNY Co., its subsidiaries or affiliates.
Notwithstanding the foregoing provisions of this Section, nothing shall
prevent Consultant from owning less than 5% of the outstanding shares of any
entity actively traded on a recognized securities exchange or NASDAQ.
8. Independent Contractor. Consultant shall act hereunder as an
independent contractor, shall not be subject to any formal schedule of duties
or hours, and shall in no event be deemed an employee of BNY Co., its
subsidiaries or affiliates for purposes of employee benefits or otherwise,
merely as a consequence of this agreement or his rendering of Services.
This agreement and the rendering of Services shall not in any way affect
Consultant's rights or benefits as a retired BNY employee or as a member of
the Board of Directors of BNY Co., including without limitation any employee
benefit (whether pension or otherwise) earned or accrued as a BNY employee
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prior to the Effective Date and any fees earned as a member of the Board of
Directors of BNY Co.
9. Termination. Upon written notice to Consultant, BNY Co. may at
any time terminate this agreement with or without Cause (defined below). If
BNY Co. terminates this agreement without Cause, it shall be obligated to pay
Consultant any unpaid portion of the Consulting Fee when otherwise due and
continue its obligations under Section 4. If BNY Co. terminates this
agreement with Cause, it shall only be obligated to pay Consultant that
portion of the Consulting Fee that has accrued through the last day Consultant
renders Services. In such instance, Consultant shall reimburse BNY Co. for
any portion of the Consulting Fee that has been paid but not accrued through
the last day Consultant renders Services.
Upon 30 days prior written notice to BNY Co., Consultant may at any
time terminate this agreement, in which case BNY Co. shall only be obligated
to pay Consultant that portion of the Consulting Fee that has accrued through
the last day Consultant renders Services but shall remain obligated to
continue its obligations under Section 4. In such instance, Consultant shall
reimburse BNY Co. for any portion of the Consulting Fee that has been paid
but not accrued through the last day Consultant renders Services.
In the event of Consultant's death or Disability (defined below), this
agreement shall terminate and BNY Co. shall have no further obligation to pay
any party, including Consultant's estate, any unpaid portion of the Consulting
Fee and Consultant or Consultant's estate shall have no obligation to
reimburse BNY Co. for any portion of the Consulting Fee which has been paid to
Consultant.
As used herein, Cause means Consultant has (i) materially breached
this agreement, (ii) failed, after being provided with notice and reasonable
opportunity to cure, to render any Services required under this agreement,
(iii) breached any of his fiduciary duties to BNY Co., its subsidiaries or
affiliates, or (iv) been convicted of any felony.
As used herein, Disability shall mean the inability of Consultant,
due to a physical or mental disability, for a period of 90 days, regardless
of whether consecutive, during any 360 day period to perform the services
contemplated under this agreement. A determination of Disability shall be
made by a physician satisfactory to both Consultant and BNY Co., provided
that if Consultant and BNY Co. do not agree on a physician, Consultant and
BNY Co. shall each select a physician and these two physicians together shall
select a third physician, whose determination as to Disability shall be
binding on Consultant and BNY Co.
10. Change of Control. At any time after a Change of Control
(defined below), at the election of Consultant, BNY Co. shall pay Consultant
in a lump sum any unpaid portion of the Consulting Fee, Consultant shall have
no further obligation to render Services and this agreement shall be deemed
terminated except for BNY Co.'s continuing obligations under Section 4.
Change of Control shall be as defined in the 1993 Long Term Incentive Plan of
The Bank of New York Company, Inc., as amended from time to time.
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11. Complete Agreement; Modification. This agreement contains the
entire agreement of the parties with respect to the subject matter hereof.
It may not be amended except in writing signed by both parties. In case any
one or more of the provisions contained herein shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions herein, and this
agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. If, moreover, any one or more of
the provisions contained herein shall for any reason be held to be excessively
broad as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
12. Binding Nature; Assignment. This agreement shall be binding on
and inure to the benefit of the parties hereto and may not be assigned by
either party. Notwithstanding the foregoing, BNY Co. may assign this
agreement to any entity controlled by, or under common control with, it
without Consultant's consent.
13. Limitation of Liability. Except as otherwise expressly provided
herein, Consultant assumes no responsibility under this agreement other than
to render the Services called for hereunder in good faith and shall not be
liable to BNY Co. except for his acts or omissions constituting bad faith,
willful misconduct, gross negligence or reckless disregard of his duties.
14. Applicable Law. Consultant will comply with all applicable laws
in rendering Services under this agreement. This agreement shall be governed
by and construed in accordance with the substantive laws, and not the choice
of law rules, of the State of New York.
If the foregoing reflects our understanding, please sign and return the
duplicate copy of this letter to the undersigned.
Very truly yours,
THE BANK OF NEW YORK ACCEPTED AND AGREED:
COMPANY, INC.
By: \s\ Xxxxxx X. Renyi \s\ X. Xxxxxx Xxxxx
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Xxxxxx X. Renyi X. Xxxxxx Xxxxx
President and
Chief Executive Officer
Dated: November 5, 1997
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