[DESCRIPTION] EXHIBIT 10(k)
PERFORMANCE-BASED COMPENSATION AGREEMENT
THIS AGREEMENT, dated as of the 25th day of March, 1997, between XXXXXXXXXX
XXXXX HOLDINGS INC. ("Holdings") and XXXXXX X. XXXXXXXXX ("Xxxxxxxxx").
W I T N E S S E T H :
WHEREAS, Xxxxxxxxx is employed by Xxxxxxxxxx & Co. Inc., a wholly-owned
subsidiary of Holdings (the "Company"), and Holdings as their respective
Chief Executive Officer and serves as Chairman of their respective Boards of
Directors; and
WHEREAS, the Compensation and Stock Option Committee (the "Committee") of
the Board of Directors of Holdings has determined that it is in the best
interests of the Company and Holdings to compensate Xxxxxxxxx for his
services during the Term hereof in a manner that aligns the compensation of
Xxxxxxxxx with the performance of the Company and Holdings, the long-term
interests of the shareholders of Holdings and the compensation paid to other
chief executive officers of comparable financial service companies;
NOW, THEREFORE, in consideration of the premises set forth in this Agreement,
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Holdings and Xxxxxxxxx agree as follows:
1. Definitions.
(a) Common Stock means the Class A non-voting shares of Holdings.
(b) Base Price means, with respect to any Stock Appreciation Amount (i) for
the calendar year ended December 31, 1997, $14.50, being the average closing
price on the New York Stock Exchange of a share of Common Stock on each
trading day during the period beginning December 15, 1996 and ending January
15, 1997 and, (ii) for any subsequent year during the Term, the average
closing price on the New York Stock Exchange of a share of Common Stock on
each trading day during the period beginning December 15 of such year and
ending January 15 of the following year.
(c) Market Value of a share of Common Stock as of December 31 of a calendar
year means the average closing price on the New York Stock Exchange of a
share of Common Stock on each trading day during the period beginning
December 15 of such year and ending January 15 of the following year. The
Market Value of a share of Common Stock as of any other determination date
means the average closing price on the New York Stock Exchange of a share of
Common Stock on each trading day during the period beginning fifteen (15)
calendar days before, and ending fifteen (15) calendar days after, such date.
If the Common Stock is not listed on the New York Stock Exchange at the time
for determination, the closing sale price on NASDAQ shall be used.
(d) Performance Award means any payment made pursuant to Section 2 of this
Agreement.
(e) Term means the period commencing on January 1, 1997 and ending on
December 31, 2001.
2. Performance Awards.
(a) On or before the 90th day of each year during the Term, the Committee
shall establish a written performance goal with respect to such year
("performance year") pursuant to which Xxxxxxxxx shall be entitled to a
single-sum amount to be calculated by the Committee in accordance with a
formula set by the Committee on or before the 90th day of each year during
the Term, which is based upon the performance of Holdings, the Common Stock,
Xx. Xxxxxxxxx, or some combination thereof, during the reference year (the
"Performance Amount").
(b) Following the of each year during the Term, the Committee shall
calculate an amount (the "Stock Appreciation Amount" with respect to
such calendar year equal the amount by which the Market Value as of the
December 31 of such calendar year of a share of Common Stock exceeds
the Base Price as of December 31 of the previous year multiplied by
an assumed number of shares of Common Stock to be set each year by the
Committee on or before the 90th day of each year during the Term.
(c) Except as otherwise provided in Section 6 and subject to the limit set
forth in Section 5, within five (5) days after the Committee's certification
for each award in accordance with Section 4 following the end of each year
during the term, the Company shall pay Xxxxxxxxx in cash as additional
compensation an amount (the "Performance Award") equal to the Performance
Amount (if greater than zero) and the Stock Appreciation Amount (if greater
than zero) for that year.
3. Administration.
The procedures with respect to Stock Appreciation Payments and Performance
Awards made under this Agreement shall be administered by the Committee.
The Committee shall at all times consist of two or more members and shall be
constituted in such a manner as to satisfy the requirements of applicable
law, the provisions of Rule 16b-3 under the Securities Exchange Act of 1934
or any successor rule, and the provisions of Section 162(m)(4)(C)(i) of the
Internal Revenue Code of 1986, as amended (the "Code"). The Committee shall
have full power and authority to grant awards hereunder and to administer
and interpret this Agreement and to adopt such rules, regulations and
guidelines as it deems necessary or advisable to give effect to the purpose
and intent of this Agreement. Prior to payment of any Performance Award
payable hereunder in each year during the Term the Committee shall certify
as to the degree to which the performance goals underlying the Performance
Award have been attained for such year. Certification by the Committee shall
be made no later than January 31st of each year during the Term for the
Stock Appreciation Amount and within ten (10) days after Holdings' issuance
of its annual audited financial statements with respect to each year during
the Term for the Performance Amount.
4. Limit on Performance Awards
The sum of all Performance Awards during the Term shall not exceed
$5,000,000 in the aggregate.
5. Termination of Employment
If, on or before the last day of any calendar year during the Term,
Xxxxxxxxx ceases to be employed by the Company as its Chief Executive
Officer or by Holdings as its Chief Executive Officer for any reason
other than death or disability, his right to receive any payment under
this Agreement with respect to such calendar year shall be forfeited.
6. Death or Disability
If Xxxxxxxxx'x employment with the Company or Holdings terminates by
reason of death or permanent disability, in lieu of any payments
otherwise payable under this Agreement, Xxxxxxxxx or his estate,
within thirty (30) days after December 31 following any such termination,
shall be paid the sum of (i) the amount that would be owed to Xxxxxxxxx
with respect to the Performance Amount for such year multiplied by a
fraction, the numerator of which is the number of actual days of the
year to the date of such termination and the denominator of which is
365 and (ii) the amount that would be owed to Xxxxxxxxx with respect to
the Stock Appreciation Amount using the Market Value of the Common
Stock on such termination date; provided, however, that any such
payment of a Performance Award shall be subject to the limit set forth
in Section 4 and the prior certification of the Committee as set forth
in Section 3.
7. Effectiveness of Agreement
This Agreement shall be effective as of the date of its adoption by the
Committee, subject to the approval thereof at a meeting of shareholders by
the holders of a majority of the Class B voting shares (the "Class B Shares")
present and entitled to vote at the meeting.
8. Interpretation
No provision of this Agreement may be altered or waived except in writing
executed by the parties hereto. This Agreement constitutes the entire
egreement between the parties hereto and no party shall be bound by any
warranties, representations or guarantees, except as specifically set forth
in this Agreement. This Agreement shall be interpreted under the law of the
State of New York without giving effect to the conflict of law provisions
thereof.
9. Arbitration.
Any controversy or claim arising out of or relating to this Agreement or the
breach of this Agreement which cannot be resolved by Xxxxxxxxx and Holdings
shall, at the instance of either Xxxxxxxxx or Holdings, be submitted to
arbitration in accordance with New York law and the procedures of the New
York Stock Exchange. The determination of the arbitrator shall be conclusive
and binding on Holdings and Xxxxxxxxx and judgment may be entered on the
arbitrator's award in any court having jurisdiction.
10. Assignability.
The respective rights and obligations of Xxxxxxxxx and Holdings under this
Agreement shall inure to the benefit of and be binding upon the heirs and
legal representatives of Xxxxxxxxx and the successors and assigns of Holdings.
IN WITNESS WHEREOF, Holdings and Xxxxxxxxx have executed this Agreement as
of the day and year first above written.
XXXXXXXXXX VINER HOLDINGS INC.
By:/s/ X.X. Xxxxxxx
Name:Xxxxxx X. Xxxxxxx
Title:President
/s/ X.X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, individually
