Exhibit 12
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 10th day of March 2000, by and among Prism
Financial Corporation, a Delaware corporation (the "Company"), Xxxx X. Xxxxx
(the "Executive"), and Royal Bank of Canada, a bank organized and existing under
the laws of Canada ("Acquiror").
WHEREAS, Acquiror and the Company have determined that it is in their
respective best interests to assure that the Company will have the continued
dedication of the Executive pending the merger (the "Merger") of the Company and
Rainbow Acquisition Subsidiary, Inc., a Delaware corporation and wholly owned
subsidiary of Acquiror ("Acquisition") pursuant to the Merger Agreement dated as
of March 10, 2000 among the Company, Acquiror and Acquisition (the "Merger
Agreement"), and to provide the Company, as the surviving corporation of the
Merger, with continuity of management. Therefore, in order to accomplish these
objectives, the Executive, Acquiror and the Company have entered into this
employment agreement.
WHEREAS, the Executive desires to accept such continued employment,
subject to the terms and provisions of this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Time. The "Effective Time" shall mean the effective time
of the Merger, provided the Executive is employed by the Company at such time.
As of the Effective Time, any and all other employment agreements entered into
between the Company and Executive prior to the Effective Time (including,
without limitation, any employment agreement entered into among the Company,
Executive and Acquiror in connection with or in contemplation of the
transactions contemplated by the Merger Agreement) shall terminate and become
null and void, provided that any option agreements between the Executive and the
Company shall terminate and become null and void only upon the final installment
payment of the special retention bonus contemplated by Section 2.10(b) of the
Merger Agreement and provided further that upon any termination of the
transactions contemplated by the Merger Agreement, this sentence will be
inapplicable.
2. Employment Period. The Company hereby agrees to continue to employ
the Executive, and the Executive hereby agrees to continue in the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing as of the Effective Time and ending on December 31, 2003 (the
"Employment Period").
3. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, the Executive shall serve
as Senior Vice President of the Company with the appropriate authority,
duties and
responsibilities attendant to such position. After the Employment Period,
the Executive may continue to serve the Company under a mutually agreed
upon arrangement.
(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 of his business attention and
time 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. During the Employment
Period, it shall not be a violation of this Agreement for the Executive (A)
to continue, with respect to current positions and arrangements disclosed
to the Board and, with prior written approval of the Board of Directors of
the Company (the "Board"), with respect to future positions and
arrangements, to, serve on a reasonable number of corporate, civic or
charitable boards or committees (and promptly after the Effective Time,
Executive will submit to the Board a list of all existing board or
committee memberships and submit to the Board for approval a list of
pending or future board or committee memberships, which approval will not
be unreasonably withheld); (B) deliver a reasonable number of lectures and
speeches and (C) manage personal investments, so long as such activities do
not interfere with the proper performance of the Executive's
responsibilities as an employee of the Company in accordance with this
Agreement.
(b) Compensation.
(i) Annual Base Salary. During the initial twelve months of
the Employment Period, the Executive shall receive an annual base salary
("Annual Base Salary") of $150,000, payable in accordance with regular
payroll practices of the Company. Thereafter, the Executive shall receive
an annual base salary in an amount determined by the Board, but not less
than his initial Annual Base Salary with any such increased amount
thereafter being the Annual Base Salary. Any increase in Annual Base Salary
shall not serve to limit or reduce any other obligation to the Executive
under this Agreement. The Executive shall not be entitled to receive any
additional consideration for service during the Employment Period as a
member of the Board of Directors of the Company or any of its subsidiaries.
(ii) Interim Bonus and Annual Bonus. Provided the Executive's
employment has not been terminated for Cause or due to a voluntary
termination by the Executive (other than due to Constructive Termination,
death or Disability) on the respective dates of payment, the Executive
shall be eligible to participate in a bonus pool (the "Interim Bonus") on
December 31, 2000 where the aggregate pool for all participants shall not
be less than $105,000. The Executive shall be eligible to participate in an
annual cash bonus pool for executives ("Annual Bonus") with respect to the
first 12 months of this Agreement, whereby the aggregate pool for all
participants shall not be less than $1,825,000 to be paid no later than 13
months after the date of this Agreement. The distribution of 50% of the
Annual Bonus Pool will be unconditional and solely at the discretion of
Xxxx Xxxxxx (with no restriction whatsoever) and the remainder at the
discretion of the Board. Thereafter, the Executive shall be
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eligible to receive annual bonuses during the Employment Period in an
amount and in accordance with any plan as may be determined by the Board.
(iii) Stock Options. The Executive shall be eligible to
particpate in the Acquiror's 1999 Stock Option Plan (the "Plan"), with
grants made at the discretion of the Acquiror's Board of Directors. Any
stock options granted to the Executive shall be subject to all of the terms
and conditions of the Plan, including applicable provisions regarding
vesting, and expiration of options upon termination of employment. Such
stock options shall be administered in accordance with the Plan attached
hereto as Appendix A and pursuant to a Stock Option Agreement reasonably
acceptable, including as to vesting, to the Executive.
(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 and other
plans, practices, policies and programs of the Company (collectively,
"Employee Benefit Plans"), subject only to the generally applicable
eligibility provisions of such plans; provided that the Executive shall at
all times during the Employment Period, be entitled to receive benefits
that are comparable to those provided to other employees in positions of
comparable rank with the Acquiror and its wholly owned subsidiaries.
4. TERMINATION OF EMPLOYMENT.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period
and in that case the Date of Termination shall be the date of death. If the
Company determines in good faith that the Executive has become Disabled during
the Employment Period (pursuant to the definition of "Disabled" or "Disability"
set forth below), the Company may terminate Executive's employment by giving
written notice to the Executive in accordance with Section 10(b) of this
Agreement of the Company's intention to terminate 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 purposes of this Agreement, whether the Executive has
become "Disabled" (or incurs a Disability) shall be determined under the
Company's long-term disability plan as in effect for employees of the Company as
of the date of this Agreement. If the Executive's employment is terminated by
reason of disability, the Date of Termination shall be the Disability Effective
Date, or any later date specified by the Company.
(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 commission by the Executive of an act of criminal or
fraudulent misconduct that results in material economic harm or acute
public embarrassment to the Company, its parent or a subsidiary of the
Company (including, but not limited to, the willful violation of any
material law, rule, regulation, or cease and
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desist order applicable to the Executive) or a deliberate breach of a
fiduciary duty owed by the Executive to the Company, its parent or its
parent's shareholders;
(ii) the Executive's habitual absence from work other than as
a result of illness or Disability, continuous and intentional failure to
perform stated duties, gross negligence, or gross incompetence in the
performance of the Executive's stated duties provided that the Executive
shall be provided notice of any situation set forth herein and a reasonable
opportunity to cure such situation;
(iii) the Executive's chronic alcohol or drug abuse that
results in a material impairment of the Executive's ability to perform his
or her duties as an employee of the Company provided that the Executive
shall be provided a reasonable opportunity to cure if the Executive
demonstrates a willingness to undergo treatment or rehabilitation;
(iv) the rendering of a verdict of guilty against or the
entering of a nolo contendere plea by the Executive for any felony offense
(other than a law relating to a traffic violation or similar offense),
whether or not in the line of duty to the Company; or
(v) the final determination by a state or federal banking
agency or governmental authority having jurisdiction over the Company that
the Executive is not suitable to act in the capacity in which he is
employed by the Company or a downgrading in ratings by such authority, as
evidenced in the "Management Aspects During the Annual Review," on the
basis of such determination.
(c) Notice of Termination. Termination of employment by the
Company or by the Executive shall be communicated by Notice of Termination to
the other party hereto given in accordance with this Section 10(c). For purposes
of this Agreement, a "Notice of Termination" means a written notice which
indicates the Date of Termination, as specified below. The "Date of Termination"
means:
(i) if the Executive's employment is terminated by the
Company for Cause, the date of receipt of the Notice of Termination or any
later date specified therein within 30 days of such notice, or
(ii) if the Executive's employment is terminated by the
Executive, a date not less than 30 days after the date of the Notice of
Termination, provided, however, that the Company may waive such 30-day
provision.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) Death or Disability. If the Executive's employment is
terminated by reason of the Executive's death or Disability during the
Employment Period, this Agreement shall terminate without further obligations to
the Executive under this Agreement, other than for payment of:
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(i) the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid;
(ii) the Interim Bonus and the Annual Bonus awarded for the
first twelve months of service, in each case to the extent not theretofore
paid;
(iii) a pro rata portion of the annual bonus awarded for the
fiscal year in which the Date of Termination occurs and the annual bonus
awarded for any fiscal year prior thereto, in each case to the extent
earned, accrued or owing to the Executive but not theretofore paid; and
(iv) any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive through the Date of
Termination under any plan, program, policy or practice or contract or
agreement of the Company, to the extent not theretofore paid or provided
(such other amounts and benefits shall be hereinafter referred to as the
"Other Benefits") through the Date of Termination and continuation of
insurance plans as provided under COBRA.
Any Annual Base Salary, Interim Bonus and Annual Bonus payable pursuant to
this Section 5(a) shall be paid to the Executive as applicable, in a lump sum in
cash within 30 days after the Date of Termination; in the case of a pro-rated
Annual Bonus, as soon as practicable after the date such bonus is determined.
(b) Termination Without Cause. If the Executive's employment is
terminated by the Company without Cause, or if the Executive terminates as a
result of a Constructive Termination (as defined below), this Agreement shall
terminate without further obligations to the Executive under this Agreement,
other than for payment of:
(i) the Executive's Annual Base Salary through the Employment
Period to the extent not theretofore paid;
(ii) the Interim Bonus and the Annual Bonus awarded for the
first twelve months of service, in each case to the extent not theretofore
paid;
(iii) a pro rata portion of the annual bonus awarded for the
fiscal year in which the Date of Termination occurs and the annual bonus
for any fiscal year prior thereto, in each case to the extent earned,
accrued or owing to the Executive but not theretofore paid; and
(iv) Other Benefits through the Date of Termination and
continuation of insurance plans as provided under COBRA.
For purposes of this Agreement, "Constructive Termination" means the Executive's
voluntary termination of employment after any of the following are undertaken
without the Executive's express written consent: (A) the assignment to the
Executive of any duties or responsibilities
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inconsistent with the Executive's title and position, authority, duties or
responsibilities as contemplated by Section 3(a)(i) of this Agreement, or any
other action by the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for the purpose of this clause
(A) 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; (B) a reduction in the Executive's Annual Base Salary or
change in the Annual Bonus pool; (C) a relocation of the Executive to a location
more than ten (10) miles from the location at which the Executive performed his
duties immediately prior to the Effective Time, except for required travel by
the Executive on the Company's business to an extent substantially consistent
with the Executive's business travel obligations prior to the Effective Time or
(D) any breach by the Company or Acquiror of this Agreement.
(c) Termination for Cause; Voluntary Termination. If the
Executive's employment shall be terminated by the Company for Cause or the
Executive terminates his employment prior to the end of the Employment Period on
his own initiative (other than due to Constructive Termination, death or
Disability), this Agreement shall terminate without further obligation to the
Executive other than the obligation to pay to the Executive his Annual Base
Salary through the Date of Termination to the extent theretofore unpaid and the
Other Benefits through the Date of Termination.
6. NO MITIGATION. 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.
7. COVENANT NOT TO COMPETE; CONFIDENTIAL INFORMATION; INTELLECTUAL
PROPERTY.
(a) During the term of this Agreement, and for a period of six (6)
months after the Date of Termination, the Executive shall not:
(i) directly or indirectly, own, manage, operate, join,
control, or participate in the ownership, management, operation or control
of, or be employed by or perform services for, any Competing Business,
whether for compensation or otherwise, without the prior written consent of
the Company. For the purposes of this Agreement, a "Competing Business"
shall be (A) any business by which the Executive is employed which is, at
the Date of Termination, a significant competitor of the Company; it being
agreed that the term "business" shall refer to the specific division or
subsidiary by which Executive is employed, not such division's or
subsidiary's corporate group; (B) any Company the primary business of which
is the origination of residential mortgage loans whether or not Executive
is employed by such business; or (C) any affordable or historic tax
syndication business; provided, that, the Executive may own up to five
percent (5%) (measured by value) of the outstanding securities of any
public entity, the shares of which are traded on a national stock exchange
or quoted on the Nasdaq National Market;
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(ii) in any manner, directly or indirectly, Solicit a Client
to transact business with a Competing Business or to reduce or refrain from
doing any business with the Company, or interfere or damage (or attempt to
interfere with or damage) any relationship between the Company and a
Client. For purposes of the Agreement, the term "Solicit" means any direct
or indirect written or oral communication, inviting, advising,
encouraging, inducing or requesting any person or entity, in any manner, to
take or refrain from taking any action. For purposes of this Agreement, the
term "Client" means any client or customer or prospective client or
customer of the Company to whom the Executive provided services, or for
whom the Executive transacted business, or whose identity became known to
the Executive in connection with the Executive's relationship with or
employment by the Company; or
(iii) directly or indirectly (whether on the Executive's own
behalf or on behalf of any other person or entity) solicit, entice, advise
or encourage any officer, employee or consultant (determined as of the Date
of Termination of the Executive) of the Company or any of its affiliates or
subsidiaries to terminate such person's or entity's employment or
consulting relationship or with respect to any officer or employee of the
Company or its subsidiaries, hiring any such officer or employee.
(b) The Executive hereby acknowledges that, as an employee of the
Company, he will have access to, be making use of, acquiring and adding to
confidential information of a special and unique nature and value relating to
the Company and its strategic plan and financial operations. The Executive
further recognizes and acknowledges that all confidential information is the
exclusive property of the Company, is material and confidential, and is critical
to the successful conduct of the business of the Company. Accordingly, the
Executive hereby covenants and agrees that he will only use confidential
information for the benefit of the Company or any of its affiliates or
subsidiaries and in the course of his employment for the Company and shall not
at any time, directly or indirectly, during the term of this Agreement and
thereafter, divulge, reveal or communicate any confidential information to any
person, firm, corporation or entity whatsoever, or use any confidential
information for his own benefit or for the benefit of others except as provided
herein. All confidential information removed by the Executive shall be returned
to the Company upon termination of his employment and no copies thereof shall be
kept by the Executive.
(c) Any termination of the Executive's employment or of this
Agreement shall have no effect on the continuing operation of this Section 7.
(d) In addition to the cessation of payments set forth in
Section 7(f), the Executive acknowledges and agrees that the Company will have
no adequate remedy at law, and could be irreparably harmed, if the Executive
breaches or threatens to breach any of the provisions of this Section 7. The
Executive agrees that the Company shall be entitled to equitable and/or
injunctive relief to prevent any breach or threatened breach of this Section 7,
and to specific performance of each of the terms hereof in addition to any other
legal or equitable remedies that the Company may have. The Executive further
agrees that he shall not, in any equity proceeding relating to the enforcement
of the terms of this Section 7, raise the defense that the Company has an
adequate remedy at law.
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(e) The terms and provisions of this Section 7 are intended to be
separate and divisible provisions and if, for any reason, any one or more of
them is held to be invalid or unenforceable, neither the validity nor the
enforceability of any other provision of this Agreement shall thereby be
affected. The parties hereto acknowledge that the potential restrictions on the
Executive's future employment imposed by this Section 7 are reasonable in both
duration and geographic scope and in all other respects. If for any reason any
court of competent jurisdiction shall find any provisions of this Section 7
unreasonable in duration or geographic scope or otherwise, the Executive and the
Company agree that the restrictions and prohibitions contained herein shall be
effective to the fullest extent allowed under applicable law in such
jurisdiction.
(f) The parties acknowledge that this Agreement would not have
been entered into and the benefits described in Sections 3 or 5 would not have
been promised in the absence of the Executive's promises under this Section 7
and that should the Executive be finally determined by an arbitrator to have
engaged in any activity or conduct proscribed hereunder, all payments under this
Agreement other than Other Benefits to the extent required to be continued by
law or by the terms of the applicable plan shall cease.
(g) The Executive hereby assigns to the Company all of Executive's
right, title and interest in and to, inventions, trade secrets, works of
authorship, ideas, methods, improvements, databases, know-how, data,
developments or discoveries, whether or not patentable or copyrightable (the
"Work Product") which (i) will be, are or have been made, invented, conceived,
reduced to practice, developed or created during the Employment Period or (ii)
using the equipment, supplies, facilities and/or confidential or proprietary
information of the Company. The Executive will take such action as may be
necessary to assist the Company in obtaining statutory or common law protections
for the Work Product.
8. 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. Any purported or
attempted assignment in violation hereof shall be null and void. 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.
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9. ARBITRATION. Any and all disputes, claims or controversies,
arising from or regarding the interpretation, performance, enforcement or
termination of this Agreement shall (except as provided herein with respect to
injunctive relief) be resolved by final and binding confidential arbitration, to
be held in Chicago, Illinois, in accordance with the Employment Arbitration
Rules of the American Arbitration Association and this Section 9. Nothing in
this Section is intended to prevent either party from obtaining either
injunctive relief in court to prevent irreparable harm pending the conclusion of
any such arbitration or from utilizing any judicial court system to seek
enforcement of an arbitration award.
10. MISCELLANEOUS.
(a) Any capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Merger Agreement.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, 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.
(c) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery or overnight courier to the other
parties or by registered or certified mail, return receipt requested, postage
prepaid, addressed or by facsimile transmitted as follows:
If to the Executive:
Xxxx X. Xxxxx
0000 X. Xxxxxxx Xxxxxx, #0
Xxxxxxx, Xxxxxxxx 00000
Telecopier: 000-000-0000
If to the Company:
000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Filler
Telecopier: 000-000-0000
If to the Acquiror:
Royal Bank of Canada
000 Xxx Xxxxxx
00xx Xxxxx, Xxxxx Xxxxx
0
Xxxxxxx, Xxxxxxx, Xxxxxx
Attn: Xxxxxx X. Xxxxxx
Telecopier: 000-000-0000
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.
(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 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 or may condition any
transfer of property to the Executive on the Executive's satisfaction of such
withholding obligations in a manner satisfactory to the Company.
(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 Company may have hereunder shall not be deemed to be
a waiver of such provision or right or any other provision or right of this
Agreement.
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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.
EXECUTIVE
/s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx
COMPANY
PRISM FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Filler
------------------
Name: Xxxx X. Filler
Title: President and Chief Executive Officer
Acquiror agrees that as of the Effective Time it will honor this
Agreement and treat the Agreement as its own.
ACQUIROR
ROYAL BANK OF CANADA,
a Canadian commercial bank
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Strategic
Initiatives
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Vice Chairman, Personal and
Commercial Banking
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