Exhibit 10.279
SEPARATION AGREEMENT, GENERAL RELEASE AND WAIVER OF
CLAIMS
This Separation Agreement, General Release and Waiver of Claims
("Agreement") is entered into by and between Xxxx X. Xxxxx ("Xx. Xxxxx"), on the
one hand, and The Xxxxxxx Xxxxxx Corporation and U.S. Trust Corporation, their
respective affiliates and the predecessors, successors and assigns of each of
the foregoing (collectively "Schwab" or the "Company"), on the other hand, dated
as of May 23, 2005 (the "Execution Date") and effective upon the expiration of
the Revocation Period described in Paragraph 25(g), below ("Effective Date").
Together, Xx. Xxxxx and the Company shall be referred to herein as "the
Parties."
RECITALS
WHEREAS, the Parties agreed that Xx. Xxxxx stepped down from his positions
as Chief Executive Officer and Chairman of U.S. Trust Corporation ("U.S. Trust")
and Executive Vice-President of The Xxxxxxx Xxxxxx Corporation on May 9, 2005
and the employment relationship will end as of May 19, 2005 as a result of Xx.
Xxxxx'x retirement;
WHEREAS, the Parties now desire to definitively resolve, fully and finally,
all differences, disputes and claims Xx. Xxxxx might have against the Company
and anyone connected with it through and including the Execution Date,
including, but not limited to, those arising out of or relating to Xx. Xxxxx'x
employment relationship with Schwab and the termination thereof.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the Company and Xx. Xxxxx hereby agree as follows:
AGREEMENT
1. Separation from Positions. Xx. Xxxxx is deemed to have retired as
a Schwab Officer, from any and all U.S. Trust and Schwab directorships he holds,
and from the Policy and Executive Committees effective as of May 19, 2005
("Separation Date"). Xx. Xxxxx shall be treated as having retired only for
purposes of his long-term awards, as set forth below, and for no other purpose.
Xx. Xxxxx acknowledges and agrees that with the exception of his accrued
vacation and final paycheck for the period May 16, 2005 through May 19, 2005, he
has received all wages due to him for services rendered as a result of his
employment as Chief Executive Officer and Chairman with, and services as an
officer and director of, the Company up to and including May 19, 2005.
2. Consideration. Subject to and upon satisfaction by Xx. Xxxxx of the
terms and conditions set forth in this Agreement, Schwab agrees to provide Xx.
Xxxxx the following consideration:
(i) a lump sum payment in the amount of eight hundred and forty thousand
six hundred eighty-one dollars and no cents ($840,681), less usual
and customary taxes, withholding, and authorized deductions, payable
within ten (10) business days from the Effective Date;
(ii) a lump sum payment in the amount of three hundred and three thousand
dollars and no cents ($303,000), less usual and customary taxes,
withholding, and authorized deductions, representing a pro-rated
bonus for 2005 under the Corporate Executive Bonus Plan, payable
within ten (10) business days from the Effective Date;
(iii) a lump sum payment in the amount of two hundred sixty-five thousand
dollars and no cents, less usual and customary taxes, withholding,
and authorized deductions, payable within ten (10) business days
from the Effective Date; and
(iv) Schwab will cause to be fully vested and, in the case of stock
options, fully exercisable as of the Effective Date the following
awards: (a) all restricted shares under the Restricted Shares Award
Agreements dated October 23, 2002 and February 25, 2003; (b) all
stock options under the Nonqualified Stock Option Agreements dated
October 23, 2002 and November 8, 2002 and the Incentive Stock Option
Agreement dated October 23, 2002; and (c) all units awarded by the
LTIP Award Agreement granted as of January 1, 2003; provided,
however, that such awards shall otherwise continue to be subject to
the terms of the applicable plan and award agreement, except as
provided in paragraph 6.
3. No Other Employee Benefits. Xx. Xxxxx is not eligible for any other
benefits or payments not specifically provided for in this Agreement. Xx. Xxxxx
will be offered group health continuation coverage under COBRA. Xx. Xxxxx will
not be eligible to accrue vacation or floating holidays after May 19, 2005.
Schwab will pay Xx. Xxxxx all accrued but unused vacation and floating holidays
accrued through May 19, 2005 on the next regularly scheduled payday following
the Effective Date.
4. Waiver of Benefits under The Xxxxxxx Xxxxxx Xxxxxxxxx Pay Plan and
The U.S. Trust Special Severance Benefits Plan. Xx. Xxxxx acknowledges and
agrees that the consideration described in Paragraph 2, above, is in lieu of and
a substitute for any severance benefits he may have been eligible to receive
under The Xxxxxxx Xxxxxx Xxxxxxxxx Pay Plan, The U.S. Trust Special Severance
Benefits Plan, or under any other severance or termination pay or benefits for
which he may be eligible from the Company. Xx. Xxxxx expressly agrees that he
waives any such rights or benefits in exchange for the rights and benefits
provided under this Agreement.
5. Retirement Plans. Xx. Xxxxx'x active participation in all retirement
plans sponsored by the Company including without limitation the SchwabPlan
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Retirement Savings and Investment Plan and the U.S. Trust Corporation Employees'
Retirement Plan shall cease as of May 19, 2005. Xx. Xxxxx will not receive
Company contributions or accrue any benefit under any such plans after his
Separation Date. Xx. Xxxxx'x vested interest in any pension benefits and Company
contributions (other than matching contributions under the Company's 401(k)
plan, which are automatically fully vested) will be determined based on his
service through the Separation Date.
6. The Xxxxxxx Xxxxxx Corporation Stock Incentive Plans.
Notwithstanding anything to the contrary in this Agreement, Xx. Xxxxx agrees and
acknowledges that the Nonqualified Stock Option Agreements dated October 23,
2002 and November 8, 2002 are hereby amended to provide that the options under
such agreements will expire and will be exercisable no later than the date that
is two (2) years after the Separation Date. Under the provisions of the
Company's stock incentive plans, Xx. Xxxxx retains the right to exercise vested
options for a specific period of time after his Separation Date. Except as
provided in Paragraph 2(iii), any stock options that are not vested as of his
Separation Date are immediately canceled. The applicable Stock Option
Agreement(s) and Plan documents govern the vesting and exercising of stock
options. Except as provided in Paragraph 2(iii), any LTIP units that are not
vested as of Xx. Xxxxx'x Separation Date are immediately forfeited. The LTIP
Award Agreement and Plan document govern the vesting of LTIP units.
7. Tax Treatment. Xx. Xxxxx understands and agrees that Schwab is
providing no tax or legal advice, and makes no representations regarding tax
obligations or consequences, if any, related to any part of this Agreement,
including any consequences that may result with respect to the modification of
stock options pursuant to section 409A of the Internal Revenue Code of 1986, as
amended (the "Code"). Xx. Xxxxx further agrees that he will be responsible for
his tax obligations or consequences that may arise from this Agreement
(including without limitation the accelerated vesting of stock options and
restricted shares under Paragraph 2), and he shall not seek any indemnification
from Schwab in this regard. Xx. Xxxxx further agrees to indemnify and hold
Schwab harmless from any claims, demands, deficiencies, levies, assessments,
executions, judgments, penalties, taxes, attorneys' fees or recoveries by any
governmental entity against Schwab for any failure by Xx. Xxxxx to pay his taxes
due and owing, if any, as a result of any payments under this Agreement. The
Agreement is not intended to constitute a "nonqualified deferred compensation
plan" within the meaning of section 409A of the Code. Notwithstanding the
foregoing, in the event this Agreement or any benefit paid to Xx. Xxxxx
hereunder is deemed to be subject to section 409A of the Code, Xx. Xxxxx
consents to the Company adopting such conforming amendments as the Company deems
necessary, in its sole discretion, to comply with section 409A of the Code,
without reducing the amounts of any benefits due to Xx. Xxxxx hereunder.
8. Authorization to Sell Restricted Shares. Xx. Xxxxx agrees and
expressly authorizes the Company to sell the required number of restricted
shares from the grants set forth in Paragraph 2(iv)(a) to satisfy any
withholding tax obligations that arise by reason of the awarding or vesting of
such shares. Xx. Xxxxx understands that no
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shares will be issued to him pursuant to Paragraph 2(iv)(a) until such
obligation is satisfied.
9. No Filings. Xx. Xxxxx represents that as of the Execution Date, he
has not filed any action, claim, charge, or complaint against Schwab or any
other Releasee identified in Paragraph 11 below, with any local, state, or
federal agency, self-regulatory organization ("SRO"), or court and that he will
not make such a filing at any time hereafter based upon any events or omissions
occurring prior to and up to the Execution Date. In the event that any agency or
court assumes jurisdiction of any lawsuit, claim, charge or complaint, or
purports to bring any legal or regulatory proceedings against Schwab or any
other Releasee identified in Paragraph 11 below on Xx. Xxxxx'x behalf, he
promptly will request that the agency, SRO, or court withdraw from or dismiss
the lawsuit, claim, charge, or complaint with prejudice.
10. Covenant Not to Xxx. Xx. Xxxxx covenants that he will not file,
participate in, or instigate the filing of any lawsuits, complaints or charges
by himself or by any other person or party in any state or federal court or any
proceedings before any local, state, or federal agency, or SRO, except as
required by law, claiming that Schwab or any other Releasee identified in
Paragraph 11 below has violated any law or obligation based upon events or
omissions occurring prior to and including the effective date of this Agreement.
Notwithstanding the provisions of this Paragraph, nothing in this Agreement
shall be construed to preclude Xx. Xxxxx from timely filing a complaint with the
U.S. Equal Employment Opportunities Commission ("EEOC") or assisting any
investigation conducted by the EEOC to the extent that such rights are not
subject to waiver. In the event Xx. Xxxxx breaches the covenant contained in
this Paragraph 10, Xx. Xxxxx agrees that he will indemnify Schwab and any other
Releasee identified in Paragraph 11 below for all damages, fees, costs and
expenses, including legal fees, incurred by Schwab or any other Releasee
identified in Paragraph 11 below, in defending, participating in, or
investigating any matter or proceeding covered by this Paragraph 10.
11. Complete Release by Xx. Xxxxx. Xx. Xxxxx - for himself and for his
heirs, representatives, attorneys, executors, administrators, successors, and
assigns - releases Schwab, and all of its affiliates, subsidiaries, divisions,
parent corporations, and stockholders, officers, directors, partners, servants,
agents, employees, representatives, attorneys, employee welfare and retirement
plans and the respective plan administrators and fiduciaries, past, present, and
future, all persons acting under, by, through, or in concert with any of them,
and each of them (all of whom are hereinafter referred to as "Releasees"), from
any and all actions, causes of action, grievances, obligations, costs, expenses,
damages, losses, claims, liabilities, suits, debts, demands, and benefits
(including attorneys' fees and costs actually incurred), of whatever character,
in law or in equity, known or unknown, suspected or unsuspected, matured or
unmatured, of any kind or nature whatsoever, based on any act, omission, event,
occurrence, or nonoccurrence from the beginning of time up to and including the
Execution Date of this Agreement, including but not limited to any claims or
causes of action arising out of or in any way relating to Xx. Xxxxx'x employment
relationship with Schwab or any other Releasee.
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This release of claims includes, but is not limited to, claims for breach
of any implied or express contract or covenant; claims for promissory estoppel;
claims of entitlement to any pay (other than the payments promised in Paragraph
2); claims of wrongful denial of insurance and employee benefits, or any claims
for wrongful termination, public policy violations, defamation, invasion of
privacy, fraud, misrepresentation, unfair business practices, emotional distress
or other common law or tort matters; claims of harassment, retaliation or
discrimination under federal, state, or local law; claims based on any federal,
state or other governmental statute, regulation or ordinance, including, without
limitation, Title VII of the Civil Rights Act, as amended, the Age
Discrimination in Employment Act, the Older Worker Benefit Protection Act, the
Labor Management Relations Act, the Americans with Disabilities Act, the Family
and Medical Leave Act, the New York Human Rights Law, the New York City
Administrative Code, the New York Labor Law, the California Fair Employment and
Housing Act, the California Labor Code, the California Government Code, and the
Employee Retirement Income Security Act of 1974; and claims under the state or
federal constitution. It is expressly understood by Xx. Xxxxx that among the
various rights and claims being waived by Xx. Xxxxx in this Agreement are those
for age discrimination arising under the Age Discrimination in Employment Act of
1967 (29 U.S.C. sec. 621, et seq.), as amended.
12. Release of Unknown Claims. In order to make this release effective
as to unknown, unsuspected or concealed claims, Xx. Xxxxx expressly waives the
benefits of Section 1542 of the California Civil Code, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
In making this waiver, Xx. Xxxxx acknowledges that he may hereafter
discover facts in addition to or different from those which he now believes to
be true with respect to the subject matter released herein, but agrees that he
has taken that possibility into account in reaching this Agreement and that,
notwithstanding the discovery or existence of any such additional or different
facts, Xx. Xxxxx fully, finally, and forever settles and releases any and all
such claims.
13. Successors. This Agreement shall be binding upon the Parties, and
their heirs, representatives, executors, administrators, successors, insurers,
and assigns, and shall inure to the administrators, predecessors, successors,
and assignees of each of the Parties. In the event of Xx. Xxxxx'x death, the
benefits payable to Xx. Xxxxx under this Agreement shall inure to the benefit of
his heirs, successors, and assigns.
14. Indemnification. Nothing in this Agreement (including the release
contained herein) shall be construed to limit Xx. Xxxxx'x right to
indemnification or contribution pursuant to Delaware, New York, or California
law or the Company's
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bylaws arising from actions actually or allegedly taken in the scope of his
employment with the Company.
15. No Attorney's Fees and Costs. The Parties will bear their own
respective costs and fees, including attorney's fees incurred in connection with
the negotiation and execution of this Agreement.
16. Non-Disparagement and Cooperation.
16.1 Non-Disparagement.
Xx. Xxxxx shall not make any oral or written statement which (a) is
disparaging to the Company, or to the past or present directors, officers or
employees of the Company, or any Releasee as defined above, or (b) is calculated
to, or which foreseeably will, disrupt, disparage, damage, impair or otherwise
interfere with the business or reputation of the Company, its past or present
directors, officers or employees, or any Releasee as defined above, or (c) will
disrupt, impair or otherwise interfere with the Company's relationships with its
employees, customers, agents, representatives or vendors (individually and
collectively "disparaging statements"). Xx. Xxxxx also agrees that he will
direct his immediate family members and representatives not to make any
disparaging statements. Xx. Xxxxx further agrees to refrain from acting as a
source (attributable or otherwise) or engaging in any formal or informal
dialogue with the press or media regarding his experiences with or at Schwab
that in any way injure or are detrimental to Schwab, or its past or present
directors, officers or employees of the Company, or any Releasee as defined
above, or regarding any information Xx. Xxxxx may have acquired (first hand or
otherwise) concerning Schwab operations, marketing or advertising strategies or
plans, financial performance, recruitment or retention strategies, or internal
policies and procedures or any other Schwab information (including but not
limited to Schwab services, products, or offerings referenced in this
Agreement). Nothing herein shall preclude Xx. Xxxxx from cooperating with a
governmental agency or SRO, in an investigation initiated by such agency, or
testifying in a court of law if compelled by legal process to testify as a
witness in a lawsuit in which Schwab or any Releasee is a defendant.
16.2 Cooperation.
Xx. Xxxxx agrees not to encourage or assist in any litigation against
Schwab or any Releasee or provide testimony in any matter in which Schwab or any
Releasee has an interest unless he is required by law to do so. Xx. Xxxxx agrees
to cooperate fully with any Releasee, and any corporate affiliate of any
Releasee, specifically including any attorney retained by any of the Releasees,
in connection with any pending or future litigation or investigatory matter
(including but not limited to any Schwab investigation into Compliance or other
policy violations) in which and to the extent Schwab reasonably deems his
cooperation to be necessary. Xx. Xxxxx acknowledges and agrees that such
cooperation may include, but shall in no way be limited to, Xx. Xxxxx being
available for an interview with any of the Releasees, or any attorney or agent
retained by any of the
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Releasees, providing to any of the Releasees any documents in his possession or
under his control relating to the litigation or investigatory matter, and
providing truthful sworn statements in connection with the litigation or
investigatory matter. Xx. Xxxxx agrees to appear and give truthful testimony as
a witness in any judicial, administrative, quasi-governmental, or investigatory
proceeding as requested by Schwab. He also agrees, upon request by Schwab, to
provide information to Schwab that he learned during the course of his
employment relationship with Schwab. If Xx. Xxxxx is served with process
concerning any matter in which Schwab or any Releasee has an interest, he agrees
to immediately notify Schwab. Xx. Xxxxx further agrees to travel, if necessary,
to give testimony in any regulatory proceeding, arbitration, or litigation.
Schwab will reimburse Xx. Xxxxx for reasonable travel expenses in accordance
with the travel policies then in effect. This reimbursement is for Xx. Xxxxx'x
convenience. Schwab confirms its expectation that Xx. Xxxxx will provide
truthful information in accordance with this paragraph.
17. Confidential Information. Xx. Xxxxx acknowledges that by reason of
his employment as Chief Executive Officer with U.S. Trust and his participation
in the Policy and Executive Committees of the Company, he had access to and did
receive knowledge of Xxxxxx'x trade secrets and proprietary and confidential
information ("Confidential Information"). Xx. Xxxxx understands that
Confidential Information may be in any form, and includes all copies,
reproductions, summaries, analyses, or extracts thereof, based thereon or
derived therefrom, and which is the sole and exclusive property of the Company.
Xx. Xxxxx acknowledges and affirms his obligations to maintain the
confidentiality of Confidential Information and not to use it or to disclose it
to any third party in the future. Xx. Xxxxx understands and agrees that the term
"Confidential Information" includes, but is not limited to, customer identity,
customer account, information related to the assets and obligations carried in
an account by any Company customer, personal or business information, customer
lists, lead information, employee information (employment, personal, financial
or account information), employee lists, know-how, previous, current or
contemplated products and services, computer hardware or software configuration
or design, research and development, computer passwords, training materials,
policies and procedures, research projects, product designs, plans and/or
methods (whether currently in use or in development), source codes, future
developments, trade and sales information and data, pricing, financial models or
formulae, business plans, financial and business forecasts and estimates,
account valuation, information about costs and profits, pricing and pricing
structure, information concerning the Company's or any customer's business or
financial affairs, including its financial books and records, commitments,
procedures, plans and prospects, financial products developed by it, its
securities positions, trading strategies, and current or prospective
transactions or business, and "inside information," technical, marketing,
business, financial, or other information that constitute trade secret
information, or information not available to competitors of the Company, the use
or disclosure of which might reasonably be construed to be contrary to the
interests of the Company. Xx. Xxxxx also agrees that Confidential Information is
a valuable and unique asset that Schwab actively protects and that unauthorized
use and/or disclosure of Confidential Information could cause immediate and
irreparable harm to Schwab. Notwithstanding the definition
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above, Confidential Information shall not include any information that is in its
protected form (i) in the public domain through no fault of an employee of the
Company or otherwise, (ii) readily and accurately discernable from
publicly-available products, literature or other information, or (iii) approved
for disclosure by prior written permission of any authorized executive officer
of Schwab specifically designated by Schwab to give such authorization
("Authorized Officer"). Xx. Xxxxx further agrees that he will not, at any time,
assert any claim, ownership or other property interest in any Confidential
Information and will not, for any purpose, directly or indirectly, disclose,
reproduce, use, or disseminate in any manner, on his own behalf or on behalf of
any other person, company or entity, any Confidential Information, unless he has
received advance written consent from an Authorized Officer or he is legally
compelled (by deposition, interrogatory, request for documents, subpoena, or
similar process) to disclose any Confidential Information; provided, however,
prior to disclosing such Confidential Information, Xx. Xxxxx shall give prompt
prior written notice of such requirement so that the Company may seek a
protective order or other appropriate remedy or waive compliance with the terms
of this Agreement.
18. Non-Solicitation of Employees. Xx. Xxxxx agrees that any attempt on
his part to induce any employee, consultant or contractor to leave his/her
assignment or employment with Schwab or any Schwab entity, or any other effort
by Xx. Xxxxx to interfere in those relationships will be harmful and damaging to
Schwab. Therefore, for a period of eighteen (18) months from the Separation
Date, Xx. Xxxxx will not, at any time, up to and including November 19, 2006, in
any way (directly or indirectly), on his own behalf or on behalf of any other
person or entity solicit or attempt to solicit or induce (which shall include,
but is not limited to, contact or communication in any manner for the purpose of
soliciting or inducing) any employee, vendor or independent contractor of, or
consultant to Schwab to leave his or her employment or assignment. Nothing in
this paragraph is intended to prevent Xx. Xxxxx from discussing possible
employment or assignments with any employee, consultant, or independent
contractor who contacts him directly of his or her own volition without Xx.
Xxxxx'x solicitation or attempted solicitation of him or her.
19. Non-Solicitation of Customers. Xx. Xxxxx acknowledges that his
positions as Chief Executive Officer and Chairman of U.S. Trust, Executive
Vice-President of The Xxxxxxx Xxxxxx Corporation, and his position on the Policy
and Executive Committee have been special, unique, and intellectual in
character, have placed him in a position of particular confidence and trust with
Company customers, and have given him unique access to confidential and
proprietary information concerning, among other things, Xxxxxx'x business and
customers. Accordingly, for a period of eighteen (18) months from the Separation
Date, Xx. Xxxxx will not, at any time up to and including November 19, 2006,
directly or indirectly, either for himself or for any other person or entity,
(i) make known to any person, firm, or corporation the names or addresses of or
any information pertaining to the Company's customers (including any person or
entity who during the twelve (12) months prior to such time was a customer of
any Schwab affiliate or subsidiary), (ii) solicit or attempt to solicit (which
shall include, but is not limited to, contact or communication in any manner for
the purpose of
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soliciting or inducing) any of the Company's customers in an attempt to divert,
transfer, or otherwise take away business or prospective business from Schwab,
including without limitation those on whom he called or whom he solicited or
with whom he became acquainted while engaged as an employee with the Company, or
(iii) sell or offer to sell any security, retirement, insurance or annuity
product or related service to any customer or prospective customer of Schwab
that he solicited or attempted to solicit in breach of his obligations
hereunder. Notwithstanding the provisions of this paragraph, Xx. Xxxxx will not
be in violation of this paragraph in the event that customers of the Company
directly approach Xx. Xxxxx to do business with him, without him having
solicited or attempted to solicit them, directly or indirectly.
20. Injunctive Relief. Xx. Xxxxx acknowledges and agrees that the
restrictions contained in Paragraphs 16, 17, 18, and 19 are material inducements
to the Company's willingness to enter into this Agreement and necessary to
protect the good will, trade secrets, and confidential and proprietary
information of the Company. Xx. Xxxxx further acknowledges that the restrictions
contained in these Paragraphs are reasonable in scope and duration, will not
prevent him from earning a livelihood during the applicable period of
restriction, are necessary to protect the legitimate interests of the Company,
and that any breach by Xx. Xxxxx of any provision contained in Paragraphs 16,
17, 18, and 19 will result in immediate irreparable injury to the Company for
which a remedy at law will be inadequate. Accordingly, Xx. Xxxxx acknowledges
that the Company shall be entitled to seek permanent injunctive relief against
him in the event of any breach or threatened breach by Xx. Xxxxx of the
provisions of Paragraphs 16, 17, 18, or 19 in addition to any other remedy that
may be available to the Company, whether at law or in equity. In any such
proceeding, Xx. Xxxxx waives any defense that the Company has an adequate remedy
at law or that the injury suffered as a consequence of the breach is not
irreparable. Xx. Xxxxx consents to the personal jurisdiction of the courts of
New York in any proceeding to enforce Paragraphs 16, 17, 18, or 19 and agrees
not to interpose any objection or defense based on lack of personal jurisdiction
or improper venue in any such proceeding. Xx. Xxxxx further agrees that should
he breach the provisions of Paragraphs 16, 17, 18, or 19, it may be difficult or
impossible to specify or prove damages as a result of the breach of these
provisions and therefore agrees that he shall be liable for, in addition to the
injunctive or other relief set forth above, twenty percent (20%) of the amounts
paid under Paragraph 2 (i) and (ii) in liquidated damages for each and every
breach. The provisions of Paragraphs 16, 17, 18, or 19 shall remain unmodified
and in full force and effect following the Separation Date. It is the intention
of the Parties to this Agreement that the covenants and restrictions set forth
in Paragraphs 15, 16, 17, and 18 be given the broadest interpretation permitted
by law.
21. Return of Confidential and Proprietary Information. Xx. Xxxxx
acknowledges that he has returned to Schwab any and all property, files,
materials, records, manuals, written communications, or other items (including
hard copy and electronic documents, disks, and files) that he received, obtained
and/or created as part of his employment (excluding information Xx. Xxxxx
received about insured benefits, welfare plans, stock option grants, restricted
share awards, LTIP award agreements (including the plans under which those
awards are granted), SchwabPlan Retirement
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Savings and Investment Plan, the U.S. Trust Corporation Employees' Retirement
Plan, payroll information regarding Xx. Xxxxx, and letters of commendation or
special awards) or that are in his possession or control belonging to Schwab or
any of the Releasees, including but not limited to company sponsored credit
cards or calling cards, pagers, computer software or hardware, keys, and
identity badges. Xx. Xxxxx agrees that in the event he later locates any such
document, he will return it to Schwab immediately. The Parties agree to mutually
cooperate in the Company's retention and protection of any material that may be
necessary in the event of future circumstances that require reference to such
materials.
22. Credit Balances. Xx. Xxxxx acknowledges that he has no unpaid,
outstanding balance due on any corporate business credit card. Xx. Xxxxx agrees
that if there is an unpaid balance due on such card or cards, he will agree to
pay it immediately.
23. Company Policies. Xx. Xxxxx confirms that, as of the Effective Date
of this Agreement, to the best of his knowledge, he knows of no commission or
omission of any act by any employee or agent of the Company that constitutes, or
might reasonably constitute, a violation of the Company's Code of Business
Conduct and Ethics, Compliance Manual, or the Company's legal obligations of
which he is aware (or reasonably should have been aware), that has not already
been brought to the Company's attention or that Xx. Xxxxx can reasonably expect
to have been brought to the Company's attention. Xx. Xxxxx agrees that he will
as promptly as reasonably possible notify the Company of any such acts or
omissions to act that occurred during and relating to Xx. Xxxxx'x employment
with the Company and or come to his attention after the Effective Date of this
Agreement.
24. Corporate Approvals. The Company represents that it has obtained all
necessary Corporate approvals in order to enter this Agreement.
25. Agreement is Knowing and Voluntary. Xx. Xxxxx understands and agrees
that he:
a. has had 21 days within which to consider this Agreement before
executing it;
b. has carefully read and fully understands all of the provisions
of this Agreement;
c. is, through this Agreement, releasing Schwab and the other
Releasees from any and all claims he may have against Schwab
and the other Releasees, as stated herein, that have arisen up
to the date of execution of this Agreement;
d. knowingly and voluntarily agrees to all of the terms set forth
in this Agreement;
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e. knowingly and voluntarily intends to be legally bound by the
same;
f. was advised, and hereby is advised in writing, to consider the
terms of this Agreement and consult with an attorney of his
choice prior to executing this Agreement; and
g. has seven (7) days after signing this Agreement to revoke it;
the Agreement will not become effective or enforceable until
the seven-day revocation period has passed. Revocation can be
made by delivering written notice of revocation to Xxxxxx
Xxxxx, EVP Corporate Oversight, Xxxxxxx Xxxxxx & Co., Inc.,
000 Xxxxxxxxxx Xxxxxx, XX000XXX-00-000, Xxx Xxxxxxxxx, XX
00000. For this revocation to be effective, written notice
must be received by Xxxxxx Xxxxx no later than the close of
business on the seventh (7th) calendar day after Xx. Xxxxx
signs this Agreement. If Xx. Xxxxx revokes this Agreement, it
shall not be effective or enforceable and Xx. Xxxxx will not
receive the benefits provided herein.
26. Full and Independent Knowledge. The Parties represent that they have
discussed thoroughly all aspects of this Agreement with their respective
attorneys, fully understand all of the provisions of the Agreement, and are
voluntarily entering into this Agreement.
27. No Representations. The Parties acknowledge that, except as
expressly set forth herein, no representations of any kind or character have
been made to induce the execution of this Agreement.
28. Ownership of Claims. Xx. Xxxxx represents that he has not
transferred or assigned, or purported to transfer or assign, any claim released
by this Agreement. Xx. Xxxxx further agrees to indemnify and hold harmless each
and all of the Releasees against any and all claims based upon, arising out of,
or in any way connected with any such actual or purported transfer or
assignment.
29. Non-Admission of Liability. Neither Party, by entering into and
fulfilling this Agreement, admits to any wrongdoing or liability and each Party
denies all allegations of wrongdoing.
30. Other Representations. Xx. Xxxxx represents that he has no pending
claim for any work-related injury, and that his is not aware of any existing
injury that would give rise to such a claim, whether under applicable worker's
compensation laws or otherwise.
31. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the State of New York applicable to contracts made and to be
performed entirely within New York.
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32. Arbitration. Except with respect to judicial injunctive relief as
provided in Paragraph 20 above, any dispute or breach arising out of the
interpretation or performance of this Agreement shall be settled by arbitration
before a single arbitrator in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association in New
York, New York, to be administered by the American Arbitration Association, and
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. With the exception of initial forum fees, the
Company shall bear all costs imposed by the American Arbitration Association to
administer the arbitration including arbitrator's fees. The parties shall be
allowed to conduct such discovery as permitted by the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association or by
the arbitrator. At the conclusion of arbitration, the arbitrator shall issue an
award in writing setting forth the basis for the award. The decision of the
arbitrator shall be final and conclusive, and the Parties waive the right to
trial de novo or appeal. Further, the prevailing party shall be entitled to
recover its reasonable costs and attorney's fees. Excepted from this Paragraph
is a complaint with the EEOC, including a challenge to the validity of this
Agreement under the law, to the extent such an exception is required by law.
33. Waiver. The failure of any Party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
34. Miscellaneous.
a. The language of all parts in this Agreement shall be construed
as a whole, according to its fair meaning, and not strictly for or against
either party.
b. Should any provision in this Agreement be declared or
determined to be illegal or invalid, the validity of the remaining parts, terms,
or provisions shall not be affected thereby, and the illegal or invalid part,
term, or provision shall be deemed not to be part of this Agreement, and all
remaining provisions shall remain valid and enforceable.
c. This Agreement sets forth the entire agreement between the
Parties and fully supersedes any and all prior agreements and understandings,
written or otherwise, between the Parties pertaining to the subject matter of
this Agreement.
d. The headings used herein are for reference only and shall not
affect the construction of this Agreement.
35. Counterparts. This Agreement may be executed in one or more
counterparts, by facsimile or original signature, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
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36. Notification. Notice to be given under this Agreement to Schwab
shall be to Xxxxxx Xxxxx, EVP Corporate Oversight, Xxxxxxx Xxxxxx & Co., Inc.,
000 Xxxxxxxxxx Xxxxxx, XX 000XXX-00-000, Xxx Xxxxxxxxx, XX 00000 and to Xx.
Xxxxx at 000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES THE RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
XXXX X. XXXXX THE XXXXXXX XXXXXX CORPORATION
/s/ Xxxx X. Xxxxx By: /s/ Xxx Xxxx-Xxxx
-------------------------------- ------------------------------------
Its: Executive Vice President - Human
Resources
-----------------------------------
Date: May 23, 2005 Date: May 24, 2005
--------------------------- ----------------------
By:
------------------------------------
Its:
-----------------------------------
Date:
----------------------
U.S. TRUST CORPORATION
By: Xxxxx Xxxxx
------------------------------
Its: Managing Director - Human
Resources
-----------------------------------
Date: May 25, 2005
----------------------
By:
------------------------------------
Its:
-----------------------------------
Date:
----------------------
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