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EXHIBIT 10.2(c)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
14th day of July, 1997, by and between Xxxxxx X. Xxxxxxx, an individual (the
"Executive") and The Xxxx Nuveen Company ("JNC"), a Delaware corporation.
WHEREAS, JNC is engaged in the business of providing investment
management and advisory services; and
WHEREAS, JNC has entered into a Stock Purchase Agreement dated as of
the same day hereof (the "Stock Purchase Agreement") with the Executive, as
selling shareholder of Xxxxxxxxxxx Financial Services, Inc. ("RFS"); and
WHEREAS, the Executive is currently an executive of RFS and Executive
and JNC wish Executive to remain an employee of RFS following the date on which
the transactions contemplated by the Stock Purchase Agreement are consummated
(such date of consummation being hereinafter referred to as the "Closing Date");
and
WHEREAS, the parties desire to set forth the terms and conditions under
which the Executive shall be employed by RFS from and after the Closing Date and
upon which RFS shall compensate the Executive following the Closing Date; and
WHEREAS, the Executive will remain an employee, owner, officer and
director of The Xxxxxxxxxxx Trust Company and RF Securities (collectively,
"RTC") following the Closing Date.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, JNC
and the Executive agree as follows:
ARTICLE I.
EMPLOYMENT
1.1. Office. Subject to terms hereof, RFS shall employ the Executive, and
the Executive shall serve RFS, to the extent legally permitted taking into
account his position with RTC as Chief Investment Officer of RFS, effective on
and after the Closing Date. This Agreement shall only become effective upon the
occurrence of the Closing Date. This Agreement shall terminate upon termination
of the Stock Purchase Agreement pursuant to Article VII thereof.
1.2. Responsibilities. The Executive shall serve as Chief Investment
Officer of RFS to the extent legally permitted taking into account his position
with RTC and shall serve on the Investment Committee and make himself
reasonably available for such due diligence activities as RFS or JNC may
request. In performing his services pursuant to this Agreement, the Executive
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shall at all times be under the supervision, control and direction of RFS and
JNC and conform to their general policies and procedures.
1.3. Commitment at RFS and RTC. The Executive may own, manage, operate,
control and otherwise participate in the ownership or control of RTC.
Notwithstanding any provisions to the contrary contained in this Agreement,
including without limitation Sections 6.2, 6.3, 6.4 and 6.6, the Executive may
engage in those activities permitted pursuant to the Inter-Company Agreement by
and among JNC, RFS, RTC and the Executive without violating any provision of
this Agreement. During the term of his employment hereunder, the Executive will
not, without the prior written approval of the Chairman of the Board of JNC,
accept employment or compensation from or perform services of any nature (other
than as a director) for any business enterprise other than RTC, RFS, JNC or any
of their respective Affiliates (as defined in the Stock Purchase Agreement).
ARTICLE II.
TERM OF EMPLOYMENT
2.1. Term. (a) The employment of the Executive pursuant hereto shall
commence on the Closing Date and remain in effect for a term expiring on
December 31, 2002 (the "Term") unless sooner terminated pursuant to the
provisions hereof. Such employment term in effect at any given time is referred
to herein as the "Term".
(b) "JNC Change of Control Transaction" shall mean any of the following:
(i) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
voting securities of JNC where such acquisition causes such Person to own
20% or more of the combined voting power of the then outstanding voting
securities of JNC entitled to vote generally in the election of directors
(the "Outstanding JNC Voting Securities"); provided, however, that for
purposes of this subsection (i), none of the following acquisitions shall
be deemed a JNC Change of Control Transaction: (A) any acquisition directly
from JNC, (B) any acquisition by JNC, (C) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by JNC or any
corporation controlled by JNC or (D) any acquisition by any corporation
pursuant to a transaction that complies with clauses (A), (B) and (C) of
subsection (iii) below; and provided, further, that if any Person's
beneficial ownership of the Outstanding JNC Voting Securities reaches or
exceeds 20% as a result of a transaction described in clause (A) or (B)
above, and such Person subsequently acquires beneficial ownership of
additional voting securities of JNC, such subsequent acquisition shall be
treated as an acquisition that causes such Person to own 20% or more of the
Outstanding JNC Voting Securities; or
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(ii) individuals who, as of the effective date hereof, constitute the
Board of Directors of JNC (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by JNC's shareholders, was approved by
a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member
of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Incumbent Board; or
(iii) the approval by the shareholders of JNC of (x) a reorganization,
merger or consolidation or sale, or other disposition of all or
substantially all of the assets of JNC or (y) the acquisition of assets or
stock of another corporation in exchange for voting securities of JNC (each
of (x) and (y), a "Business Combination") or, if consummation of such
Business Combination is subject, at the time of such approval by
shareholders, to the consent of any government or governmental agency, the
obtaining of such consent (either explicitly or implicitly by
consummation); excluding, however, such a Business Combination pursuant to
which (A) all or substantially all of the individuals and entities who were
the beneficial owners of the Outstanding JNC Voting Securities immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation that as a result of such
transaction owns JNC or all or substantially all of JNC's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination of the Outstanding JNC Voting Securities, (B) no Person
(excluding any employee benefit plan (or related trust) of JNC or such
corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, (except to the extent that such ownership existed
prior to the Business Combination) an amount of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding
voting securities of such corporation representing the greater of (1) 20%
thereof or (2) a percentage thereof equal to or greater than the percentage
thereof held after such transaction by the persons who were the owners of
JNC's Class B stock prior to such transaction; and (C) at least a majority
of the members of the board of directors of the corporation resulting from
such Business Combination were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
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(iv) approval by the shareholders of JNC of a complete liquidation or
dissolution of JNC.
Notwithstanding the foregoing, unless a majority of the Incumbent Board
determines otherwise, no JNC Change of Control Transaction shall be deemed to
have occurred hereunder if the JNC Change of Control Transaction results from
actions or events in which the Executive is a participant in a capacity other
than solely as an officer, employee or director of RFS or JNC.
ARTICLE III.
COMPENSATION OF EXECUTIVE
3.1. Salary. As full compensation for his services hereunder, RFS will pay
to the Executive during the Term, a base salary ("Base Salary") at an annual
rate for each 12 month period equal to five hundred thousand dollars
($500,000).
3.2. Benefits: Other Compensation. The Executive shall be entitled to such
health, life and disability insurance benefits and such profit sharing,
pension, paid vacation, sick and personal time and other fringe benefits as are
available to, and on similar terms and conditions as apply to, senior
management employees of RFS from time to time, as approved by JNC.
3.3. Future Benefit Plans. In addition to benefits under Section 3.2, the
Executive shall also be entitled to participate in such other employee benefit
plans or arrangements offered to senior executives and key management employees
of RFS and approved by JNC after the Closing Date (or any JNC benefit plans as
may be mutually agreed), in accordance with the terms and conditions of such
plans and agreements.
3.4. Expenses. During the term of this Agreement, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in performing services hereunder, provided such expenses are
properly accounted for in accordance with general JNC policy, as in effect from
time to time and communicated to the Executive prior to incurring such expense.
ARTICLE IV.
TERMINATION
4.1. Discharge for Cause. The Executive may be terminated by RFS or JNC
from his employment hereunder for Cause. Discharge for Cause shall mean the
termination of the Executive's employment with RFS if any one or more of the
following events should occur: (a) the conviction of the Executive, by a court
of competent jurisdiction, or entry of a plea of guilty or nolo contendere, of
any crime of moral turpitude (whether or not involving RFS or JNC) which
constitutes a felony in the jurisdiction involved, (b) the Executive's fraud,
embezzlement or intentional misappropriation of any property of RFS, JNC or
their respective Affiliates (as defined in the Stock Purchase Agreement) or any
clients of any of them, (c) the commission by
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the Executive of an act that would cause the Executive, RFS, JNC or any of their
respective Affiliates to be disqualified in any material manner under Section 9
of the 1940 Act, if the Securities and Exchange Commission (the "Commission")
were not to grant an exemptive order under Section 9(c) thereof, or that would
constitute grounds for the Commission to deny, revoke or suspend registration of
RFS, JNC or any of their respective Affiliates as an investment advisor,
broker/dealer or transfer agent, as applicable, with the Commission, in each
case after written notice specifying in reasonable detail the nature of the act
and the aforementioned consequences thereof and an opportunity to cure of not
less than 30 days having been given to such Executive within 30 days after such
act comes to the attention of JNC, (d) if the Executive is an associated person
of a broker-dealer, the commission by Executive of any act that would constitute
grounds for any material order by the Commission against Executive pursuant to
Section 15(b)(4) or 15(b)(6) of the Securities Exchange Act of 1934, as amended,
in each case after written notice specifying in reasonable detail the nature of
the act and the aforementioned consequences thereof and an opportunity to cure
of not less than 30 days having been given to such Executive within 30 days
after such act comes to the attention of JNC, (e) material continued breach of
this Agreement by Executive, continued insubordination or dereliction of duties
or more than one material infraction of regulatory compliance requirements such
as JNC's code of ethics, in each case after written notice specifying in
reasonable detail the nature of the breach, insubordination or infractions and
an opportunity to cure of not less than 30 days having been given to Executive
within 30 days after such acts come to the attention of JNC, (f) continued
alcohol or other substance abuse or addiction that renders Executive incapable
of satisfactorily performing his duties, after written notice and an opportunity
to cure in the first such instance of not less than 30 days (90 days if
Executive enters an approved rehabilitation program within such 30 day period)
have been given to such Executive, or (g) gross negligence or wilful or unlawful
misconduct materially injurious to RFS or JNC or the reputation of either, in
each case after written notice specifying in reasonable detail the nature of the
misconduct and an opportunity to cure of not less than 30 days having been given
to such Executive within 30 days after such acts come to the attention of JNC.
As used in this Section 4.1, "to cure" shall mean to eliminate within 30 days
after RFS or JNC has notified the Executive of the circumstances constituting
Cause (or, if elimination is not possible within such 30-day period, to take
substantial steps in good faith that are likely to eliminate the circumstances
constituting cause).
4.2. Retirement or Resignation. The Executive's employment under this
Agreement shall automatically terminate upon his Resignation or Retirement
during the Term. Retirement shall mean the Resignation (other than by reference
to the term Retirement used in the definition of "Resignation") of the
Executive after reaching the age of 65. Resignation shall mean the termination
of the Executive's full-time employment with JNC under this Agreement other
than by reason of a (i) Disabling Event (as defined below), (ii) for Good
Reason (as defined below), (iii) Retirement, (iv) termination by JNC without
Cause, (v) termination by JNC for Cause or (vi) expiration of the Term.
4.3. Disabling Event. In the event of a Disabling Event with respect to the
Executive, RFS or JNC may terminate the Executives employment under this
Agreement. Disabling Event shall mean the Executive's death or the Executive's
physical or mental disability, as certified by
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a physician satisfactory to JNC and the Executive or his legal representative,
which renders such Executive incapable of performing his material duties and
services as an employee of RFS and which continues for more than six consecutive
months or more than twelve months in total during any twenty-four month period.
4.4. Good Reason; JNC Change of Control Transaction. (a) The Executive may
terminate his employment hereunder for Good Reason (as defined below) at any
time following the 30th day after the Executive has notified RFS and JNC in
writing of the circumstances constituting Good Reason if RFS and JNC have
failed within such 30-day period to eliminate (or, if elimination is not
possible within such 30-day period, to take substantial steps in good faith
that are likely to eliminate) the circumstances constituting such Good Reason.
As used herein, the Executive shall have Good Reason to terminate his
employment with RFS in the event of (i) a substantial breach by JNC or any of
its Affiliates of any of their respective material obligations to the Executive
under this Agreement with respect to the Executive (it being agreed for
purposes of this Section that any diminution in or failure to pay when due, the
compensation determined to be payable hereunder or benefits to be provided to
Executive hereunder shall be deemed "substantial" and "material"); (ii) the
transfer or assignment of Executive to any position other than Chief Investment
Officer of RFS or assignment or reduction of Executive's duties in a manner
inconsistent with the duties and responsibilities contemplated by Section 1.2;
(iii) RFS or JNC's requiring the Executive without Executive's consent to be
based anywhere other than a location within 25 miles of Philadelphia,
Pennsylvania ("Philadelphia Area"); or (iv) the failure by RFS to obtain the
specific assumption of this Agreement by any successor or assignee of RFS or
any person acquiring substantially all of the assets of RFS.
(b) The Executive may terminate his employment under this Agreement for any
reason during the 30-day period commencing on the first anniversary of a JNC
Change of Control Transaction.
ARTICLE V.
EFFECT OF TERMINATION
5.1. Cause, Resignation, Retirement or Disabling Event. (a) If the
Executive's employment under this Agreement is terminated (i) by RFS or JNC for
Cause or (ii) by the Executive by his Resignation, RFS shall pay the Executive
the Base Salary through the date of termination, to the extent not previously
paid, and any unused vacation, unreimbursed expenses and other benefits
described in Article III hereof applicable to the period prior to termination
("Accrued Obligations"), and RFS and JNC shall have no further obligations
hereunder. Without limiting the foregoing, the Executive shall retain all
accrued benefits to the extent vested in the profit sharing and other plans in
which he participates.
(b) If the Executive's employment under this Agreement is terminated by RFS
or JNC by reason of a Disabling Event, the Executive shall receive all Accrued
Obligations and also become fully vested in his accrued benefits as of the date
of termination in the profit sharing and
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other plans in which he participates, and RFS and JNC shall have no further
obligations hereunder.
5.2. Without Cause; Good Reason or Change of Control. If the Executive's
employment under this Agreement is terminated (i) by RFS or JNC for any reason
other than for Cause, a Disabling Event or Retirement, (ii) by the Executive
for Good Reason, or (iii) by the Executive for any reason during the 30-day
period commencing on the first anniversary of a JNC Change of Control
Transaction, the present value of Executive's Base Salary for the remainder of
the Term (discounted using the then prevailing "prime rate" of The Xxxxxx
Guaranty Trust Company of New York) shall be paid to the Executive in a lump
sum within 10 days after the effective date of such termination and other
benefits provided for in Sections 3.2 and 3.3 hereof shall continue to be paid
or provided to the Executive for the remainder of the Term (the "Severance
Period"). The Executive shall also become fully vested in his accrued benefits
as of the date of termination in the profit sharing and other plans in which he
participates.
5.3. Excise Tax Treatment. In the event that the Executive becomes entitled
to any payments or benefits in connection with a JNC Change of Control or the
Executive's termination of employment, whether such payments or benefits are
made or provided pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with JNC, any person whose actions result in a JNC
Change of Control or any person affiliated with JNC or such person
(collectively, "Severance Payments"), and if any of such Severance Payments
would be subject to the excise tax ("Excise Tax") imposed under section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code"), RFS shall pay to
the Executive an additional amount (the "Gross-Up Payment") such that the net
amount of the Severance Payments and the Gross-Up Payment retained by the
Executive, after deduction of any Excise Tax on the Severance Payments and any
federal, state and local income tax and Excise Tax upon the payment provided
for by this Section 5.3, shall be equal to the Severance Payments.
ARTICLE VI.
CONFIDENTIAL INFORMATION
6.1. Acknowledgment. The Executive agrees and acknowledges that in the
course of rendering services to RFS and its clients and customers he has had
and shall continue to have access to and has become and shall become acquainted
with confidential information about the professional, business and financial
affairs of RFS and JNC and their clients and customers and may have contributed
to or may in the future contribute to such information. The Executive
acknowledges that RFS and JNC are engaged in a highly competitive business and
that the success of RFS and JNC in the marketplace depends upon their goodwill
and reputation. The Executive recognizes that in order to guard the legitimate
interests of RFS and JNC it is necessary to protect all such confidential
information, goodwill and reputation and acknowledges that the restrictions,
prohibitions and provisions of this Article VI (including without limitation
the periods of time set forth herein) are reasonable, fair and equitable in
furtherance of the foregoing, and are a material inducement to JNC to enter
into this Agreement, subject to the provisions of Section 1.3. The Executive
agrees not to challenge the enforceability of this
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Article VI, nor will the Executive raise any equitable defenses thereto, which
the Executive hereby irrevocably waives.
6.2. Proprietary Information. In the course of his service to RFS the
Executive has had and shall continue to have access to confidential know-how,
business documents and information, marketing data, client lists and trade
secrets regarding JNC, RFS and their respective Affiliates and software and
other intellectual property developed or applied by JNC, RFS or their
respective Affiliates, all of which are confidential. Such information shall
hereinafter be called "Proprietary Information" and shall include any and all
items enumerated in the preceding sentence to which the Executive has had or
may have access, whether previously existing, now existing or arising
hereafter, whether or not conceived or developed by others or by the Executive
alone or with others during the period of his service to RFS, and whether or
not conceived or developed during regular working hours; provided, however,
that "Proprietary Information" shall not include (i) any information which is
in the public domain, provided such information is not in the public domain as
a consequence of disclosure by the Executive in violation of this Agreement,
(ii) any information that becomes available to the Executive after he ceases to
be an employee of RFS on a nonconfidential basis from a source other than RFS
or any of its Affiliates and (iii) information of a general nature not
pertaining primarily to JNC, RFS and their respective Affiliates which would
generally be acquired in similar employment with another company. This Section
6.2 is subject to the provisions of Section 1.3.
6.3. Fiduciary Obligations. The Executive agrees and acknowledges that
Proprietary Information is of critical importance to RFS and JNC and a
violation of this Article VI would seriously and irreparably impair and damage
the business of RFS and JNC. The Executive therefore agrees to keep at all
times whether during the Term or thereafter all Proprietary Information in a
fiduciary capacity for the sole benefit of RFS and JNC, subject to the
provisions of Section 1.3. Upon termination of the Executive's employment, the
Executive shall turn over and return to RFS or JNC all property in the
Executive's possession belonging to RFS or JNC, respectively, and all files and
written or electronic information and data that is, contains or reflects
Proprietary Information.
6.4. Non-Disclosure. Subject to the provisions of Section 1.3, the
Executive shall not at any time, whether during the Term or thereafter, use or
disclose, directly or indirectly (except as required by law and after
consultation with JNC), any Proprietary Information to any person other than
(a) RFS, JNC or their respective Affiliates, (b) authorized employees thereof
with a legitimate need to know related to the business of RFS, JNC or any such
Affiliate at the time of such disclosure, or (c) at the direction of RFS or
JNC, and in all such cases only in the course of the Executive's service to
RFS.
6.5. Equitable Remedies. Notwithstanding any other provision of this
Agreement to the contrary, the Executive acknowledges and agrees that the
services to be rendered by the Executive hereunder are of irreplaceable value
and RFS and JNC will suffer irreparable injury and damage and will have no
adequate remedy at law and could not be reasonably or adequately compensated in
damages for any breach or threatened or attempted breach by the Executive of
the provisions of this Article VI. Accordingly, the Executive expressly agrees
that RFS and JNC
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shall be entitled, in addition to the other rights or remedies that may be
available to it under this Agreement or at law, to a temporary and/or permanent
order enjoining or restraining the Executive from engaging in any conduct in
violation or threatened violation of the provisions of this Article VI.
6.6. Competitive Activities. (a) So long as the Executive's Employment
under this Agreement shall not have been terminated, subject to 6.6(b) and
except as otherwise expressly consented to, approved or otherwise permitted by
JNC in writing, the Executive shall not, directly or indirectly:
(i) own, manage, operate, control or otherwise participate in the
ownership or control of any person, firm, corporation, partnership or other
entity which engages in activities which compete with RFS or JNC in the
business of providing investment products and services to clients of RFS or
JNC or otherwise compete with RFS or JNC in the managed account or mutual
fund businesses (unless his participation is solely with respect to a unit
or division which does not so engage), or extend credit to or assist in
arranging credit to establish or conduct any such activity, or permit his
name, reputation or affiliations to be used in connection with any such
business;
(ii) request, induce or attempt to influence any client or customer of
RFS, JNC or any of their respective Affiliates engaged in the managed
account or mutual fund businesses to limit, curtail or cancel its business
with RFS, JNC or any of their respective Affiliates engaged in the managed
account or mutual fund businesses or solicit any such party for such
business; or
(iii) except for those individuals listed on Schedule 1 hereto, hire
any then current officer, director or employee of RFS, JNC or any of their
respective Affiliates engaged in the managed account or mutual fund
businesses or any then current consultant, agent or representative with
respect to the managed account or mutual fund businesses of RFS, JNC or any
of their respective Affiliates engaged in the managed account or mutual
fund businesses, or request, induce or attempt to influence any of the
foregoing to (A) terminate his employment or such business relationship
with RFS, JNC or any of such respective Affiliates or (B) commit any act
that, if committed by such Executive, would constitute a breach of any
provision hereof; provided, however, that other than as provided in
sections (i) and (ii), nothing in this clause (iii) shall restrict or limit
Executive from employing or entering into any business arrangement with any
person terminated by RFS or JNC other than for Cause, provided that no such
business can be conducted nor any employment arrangement entered into until
after such person is no longer employed by RFS or JNC; provided further,
however, that nothing in this clause (iii) shall prohibit the Executive
from utilizing general advertising for employee positions to a broad based
population which may include one or more officers, directors or employees
of RFS or JNC or consultants, agents or representatives with
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respect to the managed account or mutual fund businesses of RFS or JNC who
are not ultimately hired.
In addition, with respect to the provisions of Section 6.6(a) (ii) as they
apply to the Executive following the termination of his employment with RFS
hereunder, the restrictions contained in Section 6.6(a)(ii) shall apply to
clients and customers of RFS, JNC or any Affiliate of either engaged in the
managed account or mutual fund businesses in existence at the time of such
termination with respect to which, to the knowledge of Executive, RFS, JNC or
any such Affiliate of either had either submitted within twelve months prior to
the Executive's date of termination a written response to such client's request
for proposal or had other contacts within twelve months prior to the
Executive's date of termination, whether oral or written, regarding retention
of RFS, JNC or such Affiliate as an investment adviser or any potential clients
or customers to whom RFS, JNC or such Affiliate has made presentations within
the twelve months prior to cessation of the Executive's employment with RFS.
(b) The provisions of Section 6.6(a)(i), (ii) and (iii) hereof shall
continue in effect for the later of (i) five years after the Closing Date or
(ii) the earlier of (A) the transfer of a majority of the capital stock and
voting power of RTC to other than a Permitted Transferee or (B) the termination
by RFS of the Intercompany Agreement dated as of ______ by and among JNC, RFS,
RTC and the Executive and Support Services Agreement dated as of ______ by and
among JNC, RFS, RTC and the Executive (the "Covenant Period"). The parties
hereby agree that, after expiration of the Covenant Period, the Executive shall
not be prohibited pursuant to Section 6.4 hereof from utilizing his knowledge
of the identity of clients in the conduct by such Executive of the activities
described in Section 6.6(a)(i).
(c) The provisions of clauses (i), (ii), and (iii) of Section 6.6(a) and
Section 6.6(b) are separate and distinct commitments independent of each of the
other such clauses.
(d) Notwithstanding the foregoing, Section 6.6 shall not prohibit the
Executive from (x) owning, solely for investment purposes, less than 5% of the
outstanding securities of any class of securities registered pursuant to the
Securities Exchange Act of 1934, as amended, of any person, firm, corporation,
partnership or other entity referred to in Section 6.6(a) (i); or (y) owning
stock of Bryn Mawr Trust Company or Washington Trust Company.
(e) If RFS fails to make any post-termination payment to which Executive is
entitled, Executive's obligations pursuant to Section 6.6 shall immediately
terminate and be of no further force or effect.
ARTICLE VII.
MISCELLANEOUS
7.1. Notices. All notices hereunder, to be effective, shall be in writing
and shall be deemed delivered when delivered by hand, upon confirmation of
receipt by telecopy or when sent by first-class, certified mail, postage and
fees prepaid, as follows:
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(a) For notices and communications to JNC or RFS:
The Xxxx Nuveen Company
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxxx
(b) For notices and communications to the Executive:
Xxxxxx Xxxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
with a copy to:
Xxxxx Xxxxxxxxxx, Esquire
Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
By notice complying with the foregoing provisions of this Section, each party
shall have the right to change the address for future notices and
communications to such party.
7.2. Modification. As of the Closing Date this Agreement (and the other
agreements and documents referred to herein) shall constitute the entire
agreement between the parties hereto with regard to the subject matter hereof,
superseding all prior understandings and agreements, whether written or oral.
Any amendment or modification shall require the written agreement of the
parties hereto.
7.3. Assignment. This Agreement and all rights hereunder are personal to
the Executive and may not, unless otherwise specifically permitted herein, be
assigned by him. If the Executive dies, payments hereunder may be made to the
Executive's estate. Notwithstanding anything else in this Agreement to the
contrary, RFS and JNC may not assign their rights and obligations under this
Agreement (except by operation of law pursuant to a merger or similar
transaction). All monetary obligations of RFS or JNC to the Executive under
this Agreement are unconditionally guaranteed by JNC or RFS, as applicable.
7.4. Captions. Captions herein have been inserted solely for convenience of
reference and in no way define, limit or describe the scope or substance of any
provision of this Agreement.
7.5. Severability. The provisions of this Agreement are severable, and the
invalidity of any provision shall not affect the validity of any other
provision. In the event that any provision of this Agreement or the application
thereof is held to be unenforceable because of the duration or scope thereof,
the parties hereto agree that the panel of arbitrators or court making such
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determination shall have the power to reduce the duration and scope of such
provision to the extent necessary to make it enforceable, and that the Agreement
in its reduced form shall be valid and enforceable to the full extent permitted
by law.
7.6. Governing Law. This Agreement shall be construed under and governed by
the laws of the State of Delaware (without giving effect to the principles of
conflicts of law thereunder).
7.7. Indemnification. JNC agrees that under RFS's certificate of
incorporation and bylaws the Executive will be indemnified to the fullest
extent permitted by Delaware law, subject to the restrictions of the 1940 Act
and the Advisers Act. Any reduction or diminution of such indemnification after
the Closing Date other than pursuant to a change in indemnification mandated by
applicable Delaware or federal law shall not reduce the indemnification
provided to the Executive.
7.8. Tax Withholding. Notwithstanding anything else contained herein, all
amounts payable hereunder shall be net of amounts required by law to be
withheld as taxes or otherwise.
7.9. Payments.
(a) Executive shall not be required to mitigate the amount of any payment
or benefit provided for in this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for herein
be reduced by any compensation earned by other employment or otherwise.
(b) The obligation of RFS and JNC to make the payments provided for in this
Agreement and otherwise to perform its respective obligations hereunder shall
not be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which RFS and JNC may
have against the Executive or others.
(c) In the event that RFS and JNC shall fail or refuse to make payment of
any amounts or maintain any benefits due the Executive under this Agreement
within the respective time periods provided herein, JNC shall pay to the
Executive, in addition to the payment of any other sums provided in this
Agreement, interest, compounded daily, on any amount remaining unpaid to the
Executive, at the rate from time to time announced by The Xxxxxx Guaranty Trust
Company of New York as its "prime rate", each change in such rate to take
effect on the effective date of the change in such prime rate.
7.10. Attorneys' Fees. In the event of a lawsuit by either party to enforce
the provisions of this Agreement, the prevailing party shall be entitled to
recover all of its costs and expenses, including attorneys' fees (if paid to
outside counsel), incurred by the prevailing party.
7.11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same agreement, it being understood that
all of the parties need not sign the same counterpart.
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IN WITNESS WHEREOF, the parties hereto, being duly
authorized, have duly executed this Agreement as a binding contract as of the
day and year first above written.
THE XXXX NUVEEN COMPANY
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President
XXXXXX X. XXXXXXX
By: /s/ Xxxxxx X. Xxxxxxx
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