[DESCRIPTION] EXHIBIT 10(j)
STOCK APPRECIATION AGREEMENT
THIS AGREEMENT, dated as of the 15th day of February, 1995, between
Xxxxxxxxxx & Co. Inc. (the "Company") and Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx");
WHEREAS, Xxxxxxxxx is employed by the Company as its Chief Executive
Officer and serves as Chairman of its Board of Directors; and
WHEREAS, the Compensation Committee of the Board of Directors of Xxxxxxxxxx
Xxxxx Holdings Inc., the indirect parent of the Company, has reviewed
Xxxxxxxxx'x compensation in comparison to that of executives holding
similar positions at similar firms and has concluded that Xxxxxxxxx'x
salary and incentive compensation is substantially below that of comparable
executives; and
WHEREAS, the Company deems it appropriate to recognize Xxxxxxxxx'x special
contributions in managing the growth and profitability of the Company, with
particular emphasis on cost control, risk management, and formulating and
implementing the Company's acquisition strategy;
NOW, THEREFORE, in consideration of the premises set forth in this Agreement,
the Company and Xxxxxxxxx agree as follows:
1. Definitions.
(a) Common Stock means the Class A non-voting shares of Xxxxxxxxxx Viner
Holdings Inc.
(b) Base Price means CDN$9.00, representing the closing price at February 14,
1995 of a share of Common Stock.
(c) Market Value of a share of Common Stock as of December 31 of a calendar
year means the average closing price on the Toronto Stock Exchange of a share
of Common Stock on each trading day during the period beginning December 15
of such year and ending January 15 of the following year. The Market Value
of a share of Common Stock as of any other determination date means the
average closing price on the Toronto Stock Exchange of a share of Common
Stock on each trading day during the period beginning fifteen (15) calendar
days before, and ending fifteen (15) calendar days after, such date. If the
Common Stock is not listed on the Toronto Stock Exchange at the time for
determination, the closing price on NASDAQ shall be used and the Base Price
shall be US$6.25.
2. Stock Appreciation Payments.
Within thirty-one (31) days following the end of each of calendar years 1995
and 1996, the Company shall pay Xxxxxxxxx, as additional compensation, a
single-sum amount (a "Stock Appreciation Payment") with respect to such
calendar year equal to the greater of (i) 100,000 times the amount by which
the Market Value as of the December 31 of such calendar year of a share of
Common Stock exceeds the Base Price, or (ii) US$150,000; provided, however,
that the sum of the two Stock Appreciation Payments for 1995 and 1996 shall
not exceed US$625,000.
3. Termination of Employment.
If, on or before the last day of calendar year 1995 or 1996, Xxxxxxxxx
ceases to be employed by the Company as its Chief Executive Officer or by
Xxxxxxxxxx Xxxxx Holdings Inc. as its Chief Executive Officer for any reason
other than death or disability, his right to a Stock Appreciation Payment
with respect to such calendar year shall be forfeited.
4. Death or Disability.
If, before both Stock Appreciation Payments have been made pursuant to
Paragraph 2, Xxxxxxxxx'x employment with the Company or Xxxxxxxxxx Xxxxx
Holdings Inc. terminates by reason of death or permanent disability, then in
lieu of any remaining payments under Paragraph 2, the Company shall pay
Xxxxxxxxx or his estate, within thirty (30) days after such termination,
100,000 times the amount by which the Market Value of a share of Common Stock
as of such date of termination of employment exceeds the Base Price; provided,
however, that such amount shall be doubled if Xxxxxxxxx has received no prior
Stock Appreciation Payments pursuant to Paragraph 2. In no event shall the
payment made pursuant to this Paragraph 4, when added to any payment made
pursuant to Paragraph 2, exceed US$625,000.
5. Interpretation.
No provision of this Agreement may be altered or waived except in writing
and executed by the other party hereto. This Agreement constitutes the
entire contract between the parties hereto and no party shall be bound by
any warranties, representations or guarantees, except as specifically set
forth in this Agreement. This Agreement shall be interpreted under the laws
of the State of New York.
6. Arbitration.
Any controversy or claim arising out of or relating to this Agreement or the
breach of this Agreement which cannot be resolved by Xxxxxxxxx and the
Company shall, at the instance of either Xxxxxxxxx or the Company, be
submitted to arbitration in accordance with New York law and the procedures
of the New York Stock Exchange. The determination of the arbitrator shall
be conclusive and binding on the Company and Xxxxxxxxx and judgment may be
entered on the arbitrator's award in any court having jurisdiction.
7. Assignability.
The respective rights and obligations of Xxxxxxxxx and the Company under
this Agreement shall inure to the benefit of and be binding upon the heirs
and legal representatives of Xxxxxxxxx and the successors and assigns of the
Company.
IN WITNESS WHEREOF, the Company and Xxxxxxxxx have executed this Agreement
as of the day and year first above written.
XXXXXXXXXX & CO. INC.
By: /s/ X.X. Xxxxxxx
Title: Treasurer
/s/ X.X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
