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EXHIBIT 4.09
EMPLOYMENT AGREEMENT
AGREEMENT by and between Xxxx Xxxxxxxx Corporation, a Delaware corporation
(the "Company"), and Xxxxxx Xxxxxx (the "Executive") dated as of the 28th day of
September, 2000.
The Company has determined that it is in the best interests of the Company
and its shareholders to assure that the Company will have the continued
dedication of the Executive pending the merger (the "Merger") of the Company
with and into a wholly owned subsidiary (the "Merger Subsidiary") of Royal Bank
of Canada ("RBC"), pursuant to the Agreement and Plan of Merger dated as of
September 28, 2000 by and among the Company, the Merger Subsidiary and RBC (the
"Merger Agreement") 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. Subject to the terms and conditions of this
Agreement, the Company hereby agrees to employ the Executive, and the Executive
hereby agrees to enter into the employ of the Company for the period commencing
on the Effective Date and ending on December 31, 2003 (the "Employment Period").
3. Terms of Employment. (a) Position and Duties. (i) During the Employment
Period, (A) the Executive shall serve as the Chairman and Chief Executive
Officer of RBC Xxxx Xxxxxxxx Xxxxxxx, with such authority, duties and
responsibilities as are commensurate with and as may be consistent with such
positions and titles, (B) with respect to the U.S. wealth management businesses,
the Executive shall report directly to the most senior executive of Royal
Investment Services, and with respect to Executive's capacity as a member of the
RBC group management committee, the Executive shall report directly to the
Chairman and Chief Executive Officer of RBC (each of the individuals serving
from time to time in the foregoing capacities is hereinafter referred to as a
"Reporting Person"), (C) the Executive shall serve as a member of the RBC group
management committee, (D) the Executive shall be the most senior executive of
RBC and its affiliates for the following U.S. wealth management businesses:
retail brokerage, online brokerage, traditional asset management of the type
conducted by the Company immediately prior to the Effective Date (and excluding
the asset management business run by the global equity derivatives department of
RBC Dominion Securities), correspondent clearing, whether such operations are
conducted or controlled by RBC or its affiliates as of the date hereof, the
Effective Date or thereafter, (E) the operations, IT and other staff functions
that relate to the businesses set forth in clause (D) above shall report to the
Executive, and (F) the Executive's principal place of employment shall be in
Minneapolis, Minnesota. For purposes of this Agreement, the terms "affiliate"
and "affiliated company" shall mean any entity controlled by, controlling or
under common control with RBC.
(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
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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. The Executive may not engage, directly or indirectly, in any
other business or investment activity that materially interferes with the
Executive's performance of his duties hereunder, is contrary to the business
interests of the Company or any of its affiliates, or requires any significant
portion of Executive's business time. During the Employment Period it shall not
be a violation of this Agreement for the Executive to (A) serve on civic or
charitable boards or committees, and, subject to the approval of the RBC Board
of Directors, on corporate 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.
(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 set forth on Schedule I hereto.
(ii) Annual Bonus. For calendar year 2000, the Executive shall receive
an annual bonus of no less than the annual bonus that would be paid to the
Executive under the Company's practices as in effect prior to the Effective
Date. With respect to the 12 month bonus performance years 2001, 2002 and 2003,
the Executive shall receive an annual cash bonus ("Annual Bonus") of not less
than the amount set forth on Schedule I hereto (the "Guaranteed Bonus"), with
the opportunity to earn an Annual Bonus greater than the Guaranteed Bonus based
on performance and consistent with the Company's practices as in effect prior to
the Effective Date. The Guaranteed Bonus shall be paid in accordance with the
Company's practices for similarly situated executives. Except as otherwise
provided in Section 5 hereof, the Annual Bonus shall be prorated for any portion
of a bonus performance year during the Employment Period.
(iii) Retention Unit Award. On the Effective Date, the Executive shall
be granted a stock unit award (the "Retention Unit Award") in respect of the
number of shares of RBC common stock with a fair market value equal to the
amount set forth on Schedule I hereto (with the number of stock units determined
based on the average closing price of RBC common stock on the New York Stock
Exchange for the five trading days ending on the trading day immediately prior
to the Effective Date) (the "Retention Units"). The Retention Units shall be
allocated to a notional account in the name of the Executive, with the value of
such account to be measured based on the fair market value of RBC common stock
as of the relevant date. Dividends shall be deemed reinvested on a basis
reasonably determined by the Company and RBC. The Retention Unit Award shall
vest and a proportionate share of the notional account shall be paid in cash in
three installments, on each of the first, second and third anniversaries of the
Effective Date as follows: 33-1/3% of the Retention Unit Award and a
proportionate share of the notional account shall vest and be paid on the first
anniversary of the Effective Date, 50% of the remaining Retention Unit Award and
a proportionate share of the notional account shall vest and
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be paid on the second anniversary of the Effective Date and 100% of the
remaining portion of the Retention Unit Award and the notional account shall
vest and be paid on the third anniversary of the Effective Date, subject to
accelerated vesting and the immediate payment of the entire account balance upon
the termination of the Executive's employment due to his death or Disability, by
the Company other than for Cause or by the Executive for Good Reason.
(iv) Other Employee Benefit Plans. During the Employment Period,
except as otherwise expressly provided herein, the Executive shall be entitled
to participate in all employee benefit, welfare, perquisite and other plans,
practices, policies and programs generally applicable to similarly situated
senior executives of the Company on a basis no less favorable than that provided
to such senior executives. In addition, during the Employment Period, the
Executive shall be eligible to participate in the stock incentive plans and
programs applicable to similarly situated senior executives on a basis as shall
be determined by the Company in its discretion. From the date hereof and
thereafter for the one year period following the Effective Date, the Executive
hereby agrees that he will not exercise any portion of the option to acquire
150,000 shares of Company common stock granted to the Executive on January 4,
2000, which will be rolled over pursuant to Section 3.05 of the Merger
Agreement; provided, however, that notwithstanding anything contained herein to
the contrary, the foregoing restriction on exercise shall lapse and be of no
further force and effect upon a termination of the Executive's employment for
any reason, or upon a statutory merger or amalgamation of RBC or if RBC is the
subject of a tender or exchange offer for more than 50% of the RBC voting stock.
(v) 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 or, if more favorable,
the Company's policies immediately prior to the Effective Date.
(vi) 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. For three years after the Executive's termination of employment
for any reason other than for Cause, the Company shall continue to provide the
Executive with Office Space (to be provided off of RBC's or the Company's
premises, provided that such Office Space is comparable to that provided on
premises immediately prior to the Date of Termination) and secretarial
assistance on the same basis as provided to him immediately prior to the Date of
Termination, which shall include the continued payment of such secretary's
annual compensation and the provision of benefits to such secretary under the
plans of the Company as in effect from time to time.
(vii) 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 as in effect with respect to the senior executives of
the Company.
4. Termination of Employment. (a) Death or Disability. The Executive's
employment shall terminate automatically upon the Executive's death during the
Employment Period.
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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 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. Notwithstanding the foregoing or anything
contained herein to the contrary, in no event shall the Executive be terminated
for purposes of the Company's obligation to provide him with the compensation
and benefits under Section 3(b) of this Agreement prior to the Executive being
absent from the performance of his duties hereunder for a 180 consecutive day
period. For purposes of this Agreement, "Disability" shall mean (i) the absence
of the Executive from the Executive's duties with the Company on a full-time
basis for 180 consecutive business days or any 180 business days within a period
of 365 consecutive days as a result of incapacity due to mental or physical
illness or (ii) a determination that the Executive has a disability that 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 Board of Directors of RBC or a Reporting Person that specifically identifies
the manner in which the Board or such Reporting Person believes that the
Executive has not substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company, or
(iii) conviction of a felony or crime of moral turpitude or guilty or
nolo contendere plea by the Executive with respect thereto, which, in the case
of a crime of moral turpitude, is materially and demonstrably injurious to the
Company; or
(iv) a material violation of any of Company's material policies
(including, but not limited to, the Company's xxxxxxx xxxxxxx policy); or
(v) the Executive's engaging in fraud or personal dishonesty involving
the Company's assets; or
(vi) a material breach of Section 9 of this Agreement; or
(vii) a material reportable violation of securities industry laws,
rules or regulations, including those of any regulatory or self-regulatory
organization, that results in a significant fine to the Company and
significantly impairs the Executive from performing his material duties
hereunder; or
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(viii) a statutory disqualification or bar or a suspension of 90 days
or more by any applicable regulatory or self-regulatory organization, in each
case that significantly impairs the Executive from performing his material
duties hereunder.
With respect to the events set forth in clauses (i), (ii), (iv) or (vi) above,
the Executive shall have ten business days following written notice to the
Executive of the occurrence of such events to cure such event, provided such
event is susceptible to cure. 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. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board of Directors of the Company or upon the
instructions of a Reporting Person 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.
(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 any of the following events in the absence of a written consent of the
Executive and provided the Executive gives written notice to the Company within
90 days of the occurrence of such event and the Company has not cured such event
within ten business days following such notice:
(i) the assignment to the Executive of any duties materially
inconsistent in an adverse respect with the Executive's position (including
status, offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 3(a) of this Agreement, or any other
action by the Company which results in a material diminution in such position,
authority, duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive; or
(ii) any failure by the Company to comply with any of the provisions
of Section 3(b) of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive; or
(iii) the Company's requiring the Executive to be based at any office
or location other than that provided in Section 3(a)(i)(F) hereof; or
(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.
(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
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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 or a date within 90 days of receipt
of the Notice of Termination, as specified in such notice, (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 and (iv) if Executive's employment is
terminated by the Executive without Good Reason, the Date of Termination shall
be no fewer than 90 days following the Company's receipt of the Notice of
Termination.
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 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 the
Employment Period, divided by twelve and (2) the sum of (x) the Executive's
Annual Base Salary and (y) 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 and dental benefits to the
Executive and his spouse and dependents on the same basis such benefits are
provided to similarly situated senior executives of the Company as in effect
from time to time (collectively "Medical Benefits");
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(iii) the Retention Unit Award shall vest and the entire account
balance shall be paid immediately;
(iv) any unvested long-term incentive awards or other incentive awards
granted to the Executive prior to the Effective Date or thereafter, including
unvested stock options (collectively, "Incentive Awards") shall vest or become
immediately exercisable or free of restrictions (to the extent such restrictions
relate to the Executive's continued employment), as applicable, immediately; and
(v) 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 Unit Award shall vest
and the entire account balance shall be paid immediately, and the Incentive
Awards shall vest or become immediately exercisable and all restrictions thereon
(to the extent such restrictions relate to the Executive's continued employment)
shall lapse 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.
(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 (which shall include for purposes of this Section 5(c),
the payment of the Executive's compensation and benefits under Section 3(b)
during the 180-day period as provided in Section 4(a) of this Agreement) and the
timely payment or provision of Other Benefits. In addition, the Retention Unit
Award shall vest and the entire account balance shall be paid immediately, and
the Incentive Awards shall vest or become immediately exercisable and all
restrictions thereon (to the extent such restrictions relate to the Executive's
continued employment) shall lapse 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
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the Employment Period, this Agreement shall terminate without further
obligations to the Executive other than the obligation to pay to the Executive
(x) his Annual Base Salary through the Date of Termination, 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 (other
than upon a termination by the Company for Cause), and Other Benefits to the
extent theretofore unpaid.
(f) Cessation of the Medical Benefits. Notwithstanding anything contained
herein to the contrary, in no event shall the Company be required to provide the
Medical Benefits to the Executive, his spouse and dependents, if the Executive
is entitled to receive medical and dental benefits from another employer,
excluding for this purpose any employer that is a governmental agency or entity,
a civic, non-profit or charitable agency, organization or foundation or similar
type of non-commercial enterprise without regard as to whether the Executive
would be entitled to benefits from such employer.
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 and otherwise to perform its obligations hereunder shall
not be affected by any set-off right or action, which the Company may have
against the Executive or others. 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. The Company agrees to pay as incurred, to the full extent
permitted by law, all reasonable legal fees and expenses which the Executive may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company or the Executive (provided that such contest or claim is brought
by the Executive in good faith) or by others of the validity or enforceability
of, or liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by the Executive about
the amount of any payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable Federal rate provided for in
Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the
"Code").
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8. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, 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 additional 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 Ernst & Young LLP
or such other certified public accounting firm (other than the auditors of the
Company or its affiliates, unless the Executive consents) 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 the later of
(i) 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. 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.
(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
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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,
(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
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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.
9. Confidential Information; Noncompetition; Nonsolicitation. (a) The
Executive shall hold in a fiduciary capacity for the benefit of the Company and
its affiliates all secret or confidential information, knowledge or data
relating to the Company or any of its affiliates or RBC or any of its
affiliates, and their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Company or any of its
affiliates 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) The Executive agrees that, commencing as of the date hereof, during the
actual term of Executive's employment hereunder and for a period of the later of
three years from the Effective Date or one year following the Date of
Termination (the "Protected Period"), other than as a result of a termination by
the Company without Cause or by the Executive for Good Reason, the Executive
will not, without the written consent of the Company, engage in any business of,
or enter the employ of, as a consultant or employee, or have any interest in,
directly or indirectly, any other person, firm, corporation or other entity
engaged in any business conducted by the Company as of the date hereof (a
"Competing Business"). Nothing herein shall restrict the Executive from (i)
being the beneficial owner of 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 the Executive has no other
connection or relationship with the issuer of such securities, and nothing
herein shall restrict the Executive, (ii) if the Executive is no longer employed
by the Company or its affiliates, engaging in any capacity in the private equity
business, (iii) if the Executive is no longer employed by the Company or its
affiliates, sitting on the board of directors of any mutual fund or (iv) from
making personal investments so long as the investment vehicle is not a Competing
Business.
(c) During the Protected Period, the Executive agrees not to hire, directly
or indirectly solicit for employment, or entice or encourage to leave employment
with the Company or its affiliates, any person employed by the Company at the
time of the Executive's termination of employment. During the Protected Period,
other than following a termination of the Executive by the Company without Cause
or by the Executive for Good Reason, the Executive shall not, directly or
indirectly through any other person or entity, solicit, entice, persuade or
induce any person or entity which is then, or has been within the twelve months
preceding the Date of Termination, a client, customer, or other person or entity
having a material business relationship with the Company or its affiliates to
terminate, reduce, disrupt or otherwise alter adversely its business
relationship with the Company or its affiliates.
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(d) In the event of a breach or threatened breach of this Section 9, the
Executive agrees that the Company, RBC or their respective affiliates shall be
entitled to injunctive relief in a court of appropriate jurisdiction, or by an
arbitration panel, to remedy any such breach or threatened breach, and the
Executive acknowledges that damages would be inadequate and insufficient.
(e) 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 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 Minnesota, 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:
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If to the Executive: At the address set forth on
Schedule I hereto
If to the Company: Xxxx Xxxxxxxx Corporation
Xxxx Xxxxxxxx Plaza
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: General Counsel
copy to: Royal Bank of Canada
Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx X0X0X0
Attention: General Counsel
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) If any dispute should arise concerning this Agreement, the
interpretation of this Agreement or otherwise relating to the terms and
conditions of the Executive's employment or its termination, including any claim
of statutory discrimination, the parties agree to submit such dispute to
arbitration before a panel of three (3) neutral arbitrators from and in
accordance with the rules of the American Arbitration Association in
Minneapolis, Minnesota. For injunctive relief, it is also agreed that any court
of competent jurisdiction may also entertain an application by either party. The
parties agree that if a court or panel of arbitrators having jurisdiction over
this Agreement shall determine that the subject matter or duration of any of the
covenants and undertakings in Section 9 of this Agreement are unreasonable in
any respect, they shall be reduced, and not terminated, as such court or panel
of arbitrators determines may be reasonable. The parties further agree that no
demand for punitive damages shall be made in any such arbitration proceeding and
that the arbitrators shall not have the power to award punitive damages in any
such proceeding. Any award of the arbitrators shall be final and binding,
subject only to the right of appeal that may lie as a matter of law. The Company
shall pay all costs and expenses relating to any such arbitration.
(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) All cash amounts payable hereunder shall be payable in U.S. Dollars.
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) 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
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Company may have hereunder, including, without limitation, the right of the
Executive to terminate employment for Good Reason pursuant to Section 4(c) of
this Agreement (subject to the Executive's exercise of such right within the 90
day period as set forth in Section 4(c)), shall not be deemed to be a waiver of
such provision or right or any other provision or right of this Agreement.
(g) The Executive shall have the right to enforce on behalf of the Company
the obligations of RBC and the Company to establish a retention bonus pool
consisting of U.S. $200 million to be allocated, in the form of stock unit
awards measured based on the value of RBC common stock (with the number of units
determined based on the average closing price of RBC common stock on the New
York Stock Exchange for the five trading days ending on the trading day
immediately preceding the Effective Date), as determined by the Chairman, Chief
Executive Officer and President of the Company, in consultation with RBC, among
key employees of the Company and its Subsidiaries, in accordance with clause (a)
of Section 6.09(c) of the Company Disclosure Schedule to the Merger Agreement.
(h) Each of the Executive and the Company agree to execute mutual releases
in favor of the other party, on terms and conditions mutually agreed to by the
parties hereto, in connection with claims relating to the Executive's
termination of employment during the Employment Period, provided that in no
event shall the Executive be required to release claims relating to his rights
upon termination under this Agreement.
(i) 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.
If the Merger Agreement is terminated prior to the consummation of the
transactions contemplated thereunder, this Agreement shall be of no force and
effect.
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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.
-----------------------------------------
XXXXXX XXXXXX
XXXX XXXXXXXX CORPORATION
By
---------------------------------------
Name:
Title:
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Schedule I
Name: Xxxxxx Xxxxxx
Annual Base Salary: $300,000
Guaranteed Bonus: $3 million
Retention Amount: $6.5 million
Notice to Executive: Xxxxxx Xxxxxx
Xxxx Xxxxxxxx Corporation
Xxxx Xxxxxxxx Plaza
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
