Exhibit 10.8
AGREEMENT dated as of November 1, 1996 by and among BANKERS TRUST
COMPANY, a New York banking corporation (the "Bank"), having an address at Xxx
Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXXXXXX CAPITAL MANAGEMENT, INC.,
a District of Columbia corporation ("CCM"), having an address at World Trade
Center, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, TREMONT PARTNERS,
INC., a Connecticut corporation ("Tremont"), having an address at 000 Xxxxxxxx
Xxxxx Xxxxxx, Xxx, Xxx Xxxx 00000, and XXXXXXXX XXXXXXX LTD., a Connecticut
corporation ("SPL"), having an address at 00 Xxxxxx Xxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxx 00000.
INTRODUCTION
A. The Bank is the trustee of the Minority Equity Trust Fund (the
"MET") which was established effective as of January 1, 1991 as a fund within BT
Pyramid Trust, a collective investment trust maintained by the Bank. The MET
emphasizes investment of corporate and government retirement plan assets in
equities and other securities using the services of minority (including, but not
limited to, women's)-owned investment advisory firms and minority-owned
consultants to advise the Bank in selecting investments and to provide certain
services to the MET. The Bank entered
into contracts with the corporate and government retirement plan investors
identified on Schedule A hereto for the investment of designated portions of
their assets in the MET (such investors as of the date hereof being collectively
referred to as the "lnvestors"). CCM is a minority-owned registered investment
advisor which desires to manage the assets of the Investors now Invested In the
MET and of other retirement plans. Pursuant to that certain Agreement of even
date herewith by and between the Bank and CCM (the "Bank-CCM Agreement") the
Bank has agreed to discontinue the MET and to cooperate with CCM in the
establishment of a group trust (the "CCM Trust"), of which CCM would be the
settlor and the Bank the directed trustee, which may form an alternative to the
MET for those Investors and others similarly situated to pursue the objective of
directing management of a part of their portfolio to minority-owned investment
advisers.
B. The Bank and Tremont are parties to that certain Consulting
Services Contract dated as of September 30, 1991 (the "Tremont Agreement"). The
Bank and SPL are parties to that certain Consulting Services Contract dated as
of June 16, 1992 (the "SPL Agreement"). (The Tremont Agreement and the SPL
Agreement are hereinafter sometimes collectively referred to as the "Consulting
Agreements" and Tremont and SPL are hereinafter sometimes collectively referred
to as the "Consultants".) The Consultants render certain services to the Bank in
connection with the MET and in connection with the Chrysler
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Minority Equity Trust (the "Chrysler Fund"). The Bank desires to be released
from its obligations to the Consultants and the Consulting Agreements, except
and solely to the extent the Consulting Agreements relate to the Chrysler Fund
(which Chrysler Fund is the subject of a separate termination agreement of even
date herewith between the Bank and SPL). The Consultants are willing to furnish
such releases, subject to and in accordance with the terms and conditions
hereof, and CCM is willing, as contemplated by the Bank-CCM Agreement, to
furnish certain consideration to the Consultants on behalf of the Bank for such
releases.
AGREEMENT
In consideration of the premises and other good and valuable
consideration, the receipt of which the parties hereto hereby acknowledge, the
parties hereby agree as follows:
1. Certain Releases. (a) On the date hereof and concurrent herewith:
(i) each of the Consultants is executing and delivering to Moses & Singer LIP
(the "Escrow Agent") its release of the Bank under the appropriate Consulting
Agreement (collectively, the "Consultant Releases") in substantially the forms
of Exhibits A-1 and A-2 hereto; (ii) each of the Consultants is executing and
delivering to the Escrow Agent its release of CCM and the CCM Trust in
substantially the forms of Exhibits A-3 and A-4 hereto (collectively, the
"Consultant-CCM Releases"); (iii) CCM is executing and delivering to the Escrow
Agent its release of each of the Consultants
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(collectively, the "CCM Releases") in substantially the forms of Exhibits A-5
and A-6 hereto; and (iv) the Bank is executing and delivering to the Escrow
Agent its release of each of the Consultants (collectively, the "Bank Releases")
in substantially the forms of Exhibits A-7 and A-B hereto. The Escrow Agent
shall hold the Consultant Releases, the Consultant-CCM Releases, the CCM
Releases and the Bank Releases in escrow in accordance herewith and subject to
the escrow terms annexed hereto as Exhibit B (the "Standard Escrow Terms"), and
shall release from escrow the Consultant Releases, the Consultant-CCM Releases,
the CCM Releases and the Bank Releases (all such releases collectively, the
"Agreement Releases" and individually, an "Agreement Release") and deliver them
to the parties being released thereunder as provided in Section 5 hereof. The
parties acknowledge that the Agreement Releases are undated and the parties
agree that the Escrow Agent shall insert as the date of each of the Agreement
Releases the date on which the particular Agreement Release is delivered from
escrow and such date shall be its effective date.
(b) The Bank acknowledges and agrees that the Consultant Releases
shall not release the Bank's obligations under the Consulting Agreements to the
Consultants to extent that such obligations are solely attributable: (i) to the
services of the Consultants to the Bank heretofore or hereafter rendered with
respect to the Chrysler Fund or to any termination payments in connection
therewith, or (ii) the compensation contemplated under Section 2 hereof with
respect to the MET.
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2. Consultants' Continuation of Services to the MET. (a) The
Consultants shall continue in accordance with the Consulting Agreements to
furnish their customary services with respect to the MET until its final
termination and shall receive compensation from the Bank in respect of their
services heretofore or hereafter rendered in connection therewith as otherwise
provided under the Consulting Agreements as in effect on the date hereof.
(b) Notwithstanding any delivery of the Consultant Releases by
the Escrow Agreement to the Bank under Section 5 the Consultants shall continue
to observe and comply with, in the case of SPL Sections 8, 10 and 12 and the
final sentence of Section 15 of its Consulting Agreement in all respects and, in
the case of Tremont Sections 8, 10 and the final sentence of Section 14 of its
Consulting Agreement in all respects.
3. Certain Cooperation of the Consultants with CCM and
Nonsolicitation Covenants. For additional consideration of Ten Dollars and other
good and valuable consideration received from CCM. each of the Consultants, for
itself and its affiliates, covenants and agrees with CCM that for a period of
six (6) months from the date hereof: (i) it shall not negatively comment in any
manner to Investors in the MET with respect to CCM or the CCM Trust; and (ii) it
shall not solicit, nor cause a person under its control to solicit, the
Investors or any trustee or other fiduciary handling all or a portion of the
assets of the Investors for an investment by such Investor (or for an investment
by its trustee or other fiduciary on behalf of the Investor) in any
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entity similar to the MET or in any other product which emphasizes investment in
securities and the use in connection therewith of the advisory services of one
or more minority-controlled investment advisory firms (including firms
controlled by women) and such minority-controlled Investment advisory firms are
responsible for (or are projected to be responsible for) the management of at
least fifty percent by value of the assets of any such entity.
4. Certain Payments to the Consultants. On the date hereof and
concurrent herewith CCM has, for the benefit of the Bank, as additional
consideration for the noncompetition covenant of the Bank set forth in the
Bank-CCM Agreement, and as consideration to the Consultants for their Consultant
Releases and their CCM Releases and for their covenants under Section 3 hereof,
wired to the Escrow Agent the sum of $320,000 to be held in escrow for each of
the Consultants (or an aggregate payment of $640,000) (the "Release Payments")
in accordance herewith and with the Standard Escrow Terms. The Escrow Agent
hereby acknowledges receipt of the Release Payments. The Release Payments shall
be released by the Escrow Agent to the Consultants as provided in Section 5
hereof.
5. The Escrow Release.
(a) On the earlier of (x) the fifth business day (the
"Issuance Notice Release Date") after the date on which the Escrow Agent shall
have given notice to the parties that it has received notice from CCM or the
Bank (or directly from the internal Revenue Service) that a favorable
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determination letter has been issued by the Internal Revenue Service with
respect to the CCM Trust as contemplated by Section 14 of Revenue Procedure 96-6
and Revenue Ruling 81-100, or (y) December 15, 1996, the Escrow Agent shall,
unless it shall have received an objection from CCM in the form described in the
next sentence at least two days prior to the Issuance Notice Release Date or
December 15, 1996, whichever is earlier, release and deliver: (i) to Tremont (x)
$320,000 of the Release Payments, and (y) the Bank Release and the CCM Release
issued to Tremont as releasee, (ii) to the Bank (x) any interest accrued in
escrow on the portion of the Release Payments so released to Tremont from
escrow, and (y) the Consultant Release issued by Tremont to the Bank as
releasee; and (iii) to CCM the Consultant-CCM Release issued by Tremont to CCM
as releasee. Any objection by CCM to the release by the Escrow Agent of the
aforesaid escrow funds or other documents to Tremont shall be in writing and
shall be based solely on a breach by Tremont or any of its affiliates of its
obligations under Section 3 of the Agreement, shall state with specificity such
breach and the circumstances thereof and shall be given by CCM to Tremont and
the Bank concurrently with the delivery thereof to the Escrow Agent. If the
Escrow Agent shall have received a timely objection to such releases from escrow
from CCM in proper form it shall give prompt notice thereof to the Bank and
Tremont and shall not release any of the items described in this Section 5(a)
except upon the written agreement of CCM and Tremont or at the direction of a
court, all subject to and in accordance with the Standard
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Escrow Terms. In the event of such a delayed release of such items to Tremont,
Tremont shall also receive the interest which accrued on its portion of the
Release Payments after the date on which the Escrow Agent would have released
the same to Tremont hereunder but for the written objection of CCM and the
balance of the interest shall be paid to the Bank. In determining the amount of
Interest so to be paid to Tremont and to the Bank the Escrow Agent shall pro
rate the aggregate accrued interest on such portion of the Release Payments on a
per diem basis based upon the actual number of days which it held such funds in
escrow. If any portion of the Release Payments otherwise payable to Tremont is
ultimately returned by the Escrow Agent to CCM, any interest accrued thereon
while in escrow shall be paid to CCM.
(b) On the earlier of (x) the Issuance Notice Release Date, or
(y) December 15, 1996, the Escrow Agent shall, unless it shall have received an
objection from CCM in the form described in the next sentence at least two days
prior to the Issuance Notice Release Date or December 15, 1996, whichever is
earlier, release and deliver: (i) to SPL (x) $320,000 of the Release Payments,
and (y) the Bank Release and the CCM Release issued to SPL as releasee, (ii) to
the Bank (x) any interest accrued in escrow on the portion of the Release
Payments so released to SPL from escrow, and (y) the Consultant Release issued
by SPL to the Bank as releasee; and (iii) to CCM the Consultant-CCM Release
issued by SPL to CCM as releasee. Any objection by CCM to the release by the
Escrow Agent of the aforesaid
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escrow funds or other documents to SPL shall be in writing and shall be based
solely on a breach by SPL or any of its affiliates of its obligations under
Section 3 of the Agreement, shall state with specificity such breach and the
circumstances thereof and shall be given by CCM to SPL and the Bank concurrently
with the delivery thereof to the Escrow Agent. If the Escrow Agent shall have
received a timely objection to such releases from escrow from CCM in proper form
it shall give prompt notice thereof to the Bank and SPL and shall not release
any of the items described in this Section 5(b) except upon the written
agreement of CCM and SPL or at the direction of a court, all subject to and in
accordance with the Standard Escrow Terms. In the event of such a delayed
release of such items to SPL, SPL shall also receive the interest which accrued
on its portion of the Release Payments after the date on which the Escrow Agent
would have released the same to SPL hereunder but for the written objection of
CCM and the balance of the interest shall be paid to the Bank. In determining
the amount of interest so to be paid to SPL and to the Bank the Escrow Agent
shall pro rate the aggregate accrued interest on such portion of the Release
Payments on a per diem basis based upon the actual number of days which it held
such funds in escrow. If any portion of the Release Payments otherwise payable
to SPL is ultimately returned by the Escrow Agent to CCM, any interest accrued
thereon while in escrow shall be paid to CCM.
6. Representations and Warranties of CCM. CCM hereby represents and
warrants to the Bank and the Consultants that: (i) it is a
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corporation duly organized, validly existing and in good standing under the laws
of the District of Columbia; (ii) it is a registered investment advisor under
the Investment Advisers Act of 1940; and (iii) the execution, delivery and
performance of this Agreement by CCM has been authorized by all necessary
corporate and/or shareholder action and constitutes the binding obligation of
CCM enforceable against it in accordance with its terms.
7. Representations and Warranties of the Bank. The Bank hereby
represents and warrants to CCM and the Consultants that the execution, delivery
and performance of this Agreement by the Bank has been authorized by all
necessary corporate action and represents the binding agreement of the Bank
enforceable against it in accordance with its terms.
8. Representations and Warranties of the Consultants. Each of the
Consultants severally and solely for itself represents and warrants to the Bank
and CCM that: (i) it is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation as hereinabove set
forth; (ii) the execution, delivery and performance of this Agreement by such
Consultant has been authorized by all necessary corporate and/or shareholder
actions of such Consultant and constitutes the binding obligation of such
Consultant enforceable against it in accordance with its terms; (iii) it has not
pledged, granted any lien in, assigned or otherwise transferred any right or
obligation under its Consulting Agreement with the Bank or any right to receive
any moneys therefrom or thereunder, nor has it suffered any of the same to
occur; (iv) its observance of the
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provisions of Section 3(i) hereof will not violate the terms of any contract to
which such Consultant is a party or any duty owed by such Consultant to any
person; and (v) neither it nor its affiliates has taken action prohibited by
Section 3(i) hereof at any time within the 90 day period preceding the date
hereof.
9. Survival of Representations and Warranties. The representations
and warranties of the parties made herein shall survive for a period of three
years from the date hereof.
10. Certain Indemnifications. (a) CCM hereby agrees to pay, defend,
indemnify and hold the Consultants, their officers, directors, and employees
(collectively, the "Indemnitees") harmless from and against, for and in respect
of any damages, liabilities, losses, costs and expenses (including but not
limited to reasonable attorney fees) of any kind or nature whatsoever, which
arise from or are attributable to any claims which may be asserted by any of the
Investors (or their participants or beneficiaries) against an Indemnitee by
virtue of the observance of the Consultants of their obligations set forth in
Section 3(i) hereof.
(b) If CCM shall make a claim against Tremont or SPL to the
Escrow Agent in accordance with the procedures set forth in Section 5(a) or (b)
hereof, as the case may be, that such party violated any of its respective
obligations under Section 3 hereof, then upon resolution of such claim the
prevailing party shall be entitled recover from the party which did not prevail
in the prosecution or defense of such claim, as the case may be,
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all costs and expenses incurred by such prevailing party in the defense or
prosecution of such claim including, but not limited to, reasonable attorneys
fees.
11. Entire Agreement. Subject to the next sentence hereof, this
Agreement represents the entire agreement of the parties hereto with respect to
the subject matter hereof and supersedes any prior undertakings, inducements,
agreements or understandings, express or implied, oral or written, with respect
hereto or thereto. The Bank and CCM are parties to the Bank-CCM Agreement and
the Bank and SPL are parties to a separate termination agreement with respect to
the Chrysler Fund.
12. No Parol Modification. Neither this Agreement nor any term or
condition hereof may be discharged, terminated, modified, supplemented or
waived, except by a writing signed by the party against which the same is to be
enforced. A waiver by a party of a breach of a term or condition hereof shall
not be deemed to constitute a waiver of any other breach of the same term or
condition or of any other term or condition.
13. Notices. All notices of or other communications given hereunder
shall be in writing and shall be deemed to been given when delivered in person
or by facsimile (directed to the actual fax number of the responsible officer to
which the same is directed and subject to oral or written confirmation of
receipt) or, if mailed, then 5 days after being deposited in the U.S. Mail,
certified or registered, postage prepaid, return receipt requested, and in each
case addressed to a responsible officer of the
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party to which the same is directed at the following address for such party or
at such other address as such party shall have given notice hereunder:
If to CCM, to:
Xxxxxxx Capital Management, Inc.
World Trade Center
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: The President
Fax:(000) 000-0000
with a copy to
Xxxx Xxxxxx, Esq.
Xxxxxxx, Baetjer and Xxxxxx
1800 Mercantile Bank & Trust Building
0 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
If to Tremont, to:
Tremont Partners, Inc.
000 Xxxxxxxx Xxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attention: The President
Fax: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxx Xxxxxxxxxx Xxxxxxx Syracuse
& Hirschtritt, LIP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
If to SPL, to:
Xxxxxxxx Xxxxxxx Ltd.
00 Xxxxxx Xxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx and Xxxx Xxxxxxxx
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Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx Xxxxxxxxxx P.C.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
If to the Bank, to:
Bankers Trust Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to the Escrow Agent, to:
Moses & Singer LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
14. No Assignment. Neither this Agreement nor any of the rights or
obligations of the parties hereunder shall be assigned or otherwise transferred
without the prior written consent of the other parties.
15. Applicable Law. (a) This Agreement shall be governed by the law
of the State of New York applicable to agreements wholly to be performed
therein.
(b) Each of the parties hereby consents to the personal
jurisdiction of the Supreme Court of the State of New York, County of New York,
and of the Federal District Court for the Xxxxxxxx Xxxxxxxx xx
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Xxx Xxxx in any action or proceeding brought by any party with respect to any
claim directly or indirectly arising hereunder or in respect hereof, agrees that
such courts shall have exclusive jurisdiction thereof and waives any claim of
forum non conveniens or improper venue to the fullest extent permitted by law.
16. Binding Effect. This Agreement and the terms and conditions
hereof shall bind and enure to the successors of the parties and any permitted
assigns.
17. Captions. Captions herein are solely for convenience of
reference and shall not be used to interpret or construe this Agreement.
18. Counterparts. This Agreement may be executed in counterpart
originals, all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement by their duly authorized officers as of the date first hereinabove
written.
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx, M.D.
-------------------------------
Name: Xxxxxxx X. Xxxxxx, M.D.
Title:
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XXXXXXX CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxx X Xxxxxxx Xx.
-------------------------------
Name: Xxxxxx X Xxxxxxx Xx.
Title: President
TREMONT PARTNERS, INC.
By: /s/ [ILLEGIBLE]
-------------------------------
Name:
Title:
XXXXXXXX XXXXXXX, LTD.
By: /s/ Xxxxx X. Stambers
-------------------------------
Name: Xxxxx X. Stambers
Title: President
MOSES & SINGER LLP, as escrow agent only
By: /s/ [ILLEGIBLE]
-------------------------------
Name:
Title: Partner
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