Exhibit 10.2
(CONFIDENTIAL TREATMENT OF CERTAIN DESIGNATED PORTIONS OF THIS AGREEMENT HAVE
BEEN REQUESTED BY ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. SUCH CONFIDENTIAL PORTIONS HAVE BEEN
OMITTED, AS INDICATED BY AN (*) IN THE TEXT, AND SUBMITTED TO THE COMMISSION).
SETTLEMENT AND RELEASE AGREEMENT
* * * * * *
This Settlement and Release Agreement (this "Agreement") by and
between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Delaware corporation (the "Company" or the "Firm"),
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive" or "you"), is dated as of May 13, 2005
(the "Execution Date").
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. Resignation. Effective as of the close of business on May 20,
2005 (the "Termination Date"), the Executive's employment with the Company is
terminated and Executive will cease to hold all other positions then held as
an employee, officer or member of the board of directors of any of the
Company's subsidiaries or affiliates (the Company and all of its subsidiaries
and affiliates are hereinafter referred to as the "Affiliated Entities").
2. Bonus Payments and Benefits. (a) Subject to the conditions set
forth below, the Company agrees to pay the Executive a bonus in cash (the
"2005 Bonus") in respect of fiscal year 2005 in an amount equal to the bonus
paid to the Executive with respect to fiscal year 2004 multiplied by 171/365.
The 2005 Bonus shall be paid in January 2006.
Receipt of the 2005 Bonus shall be contingent upon the Executive's
Good Behavior. For purposes of this Agreement, Good Behavior means that (i)
through December 31, 2005 (A) the Executive has not committed any act that
would constitute a Cancellation Event as defined on Exhibit A, and (B) unless
waived in writing by the Board of Directors of the Company, the Executive
agrees that he will not support or associate himself with the so-called "Group
of 8" or become part of any management team sponsored by such group; and (ii)
through May 20, 2005 the Executive (A) has proactively assisted in key employee
retention efforts; (B) has supported the Firm and his colleagues in a positive
manner; (C) has, where helpful or necessary, assisted in client relationship
efforts; and (D) remained employed by the Firm (unless sooner terminated by
the Firm) and (E) assisted in an orderly transition of his duties. The 2005
Bonus shall be paid to Executive's estate should Executive die prior to its
payment date and there has been no violation of Good Behavior other than by
reason of Executive's death.
(b) The Executive will be eligible immediately to
participate in the Company's retiree medical benefits program on a basis no
less favorable than provided to members of the Management Committee (or the
equivalent successor committee).
(c) The Company confirms that the Executive is fully
vested in the accounts credited to him under the Pre-tax Incentive Plans
("PTIPs"), the Capital Accumulation Plan ("CAP"), the Select Employees'
Capital Accumulation Plan (SECAP") and the KEPER Notional Fund Investments
(KEPER"). The amounts credited to the Executive's accounts under PTIPs, CAP,
SECAP and KEPER are set forth in Exhibit B and payment to him shall be made in
accordance with the terms of those plans. Except as specifically provided
herein, continuation or cessation of the Executive's participation in the
employee benefit plans of the Company and its Affiliated Entities shall be
determined in accordance with the terms of those plans. The Company confirms
that the Executive is fully vested in the accounts credited to him under the
Company's 401(k) Plan ("401(k) Plan") and Employee Stock Ownership Plan
("ESOP"). The amounts credited to the Executive's accounts under the 401(k)
Plan and the ESOP are set forth in Exhibit C and payment to him shall be made
in accordance with the terms of those plans.
(d) Executive shall be reimbursed for all reasonable legal
fees incurred through the date of this Agreement in connection with the
negotiation and execution of this Agreement.
(e) The Company shall reimburse the Executive for any
out-of-pocket expenses incurred by him on or before the Termination Date in
connection with his employment, upon submission by him of appropriate
documentation in accordance with the Company's customary practices and
policies.
(f) The Executive shall receive base salary compensation
for 15 days of unused vacation in accordance with Company policy.
3. Equity and Performance Awards. Exhibit B hereto sets forth a
complete list of all of the Executive's currently outstanding stock options
(the "Stock Options") and other equity awards (together, "Stock Incentives").
For the purposes of any agreement governing any Stock Incentive and the
applicable plan, the Executive shall be treated as a Full Career Employee who
has been Voluntarily Terminated and all Stock Options shall remain exercisable
for the remainder of their original term. Stock unit awards made to the
Executive with respect to 2001, 2002 and 2003 shall have a conversion date on
the first anniversary of the Termination Date but shall in all other events be
subject to their terms, except as otherwise expressly provided herein.
4. Mutual Nondisparagement. (a) For the 36 month period
commencing on the Termination Date, the Executive shall not make, participate
in the making of, or encourage or facilitate any other person to make, any
Public Statements, written or oral, which criticize, disparage, or defame the
goodwill or reputation of, or which embarrass or adversely affect the morale
of, any of the Affiliated Entities or any of their respective present, former
or future directors, officers, executives, employees and/or shareholders. The
Executive further agrees not to make any negative statements, written or oral,
relating to his employment, the termination of his employment, or any aspect
of the business of the Affiliated Entities.
(b) For the 36 month period commencing on the Termination
Date, the Company shall not and shall instruct its executive officers and
directors not to make, participate in the making of, or encourage or
facilitate any employees or any other person to make, any Public Statements,
written or oral, which criticize, disparage, or defame the reputation of, or
which are intended to embarrass, the Executive. In addition, the Company shall
advise its
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executive officers and directors not to make any negative statements, written
or oral, relating to the Executive's employment or the termination of his
employment.
(c) For purposes of this Section 4, (i) the term "Public
Statement" shall mean any statement that the person who makes it intends, or
could reasonably expect, to become public, and (ii) no Public Statement shall
be attributed to the Company unless it is made by a Company director or
executive officer or in an official statement, in the form of a press release
or other similar public statement on behalf of the Company or any business
unit of the Company. Notwithstanding the foregoing, nothing in this Section 4
shall prevent any person from (i) responding publicly to incorrect,
disparaging or derogatory Public Statements made after the Termination Date to
the extent reasonably necessary to correct or refute such Public Statements or
(ii) making any truthful statement to the extent (x) required by law or by any
court, arbitrator, mediator or administrative or legislative body (including
any committee thereof) with actual or apparent jurisdiction to order such
person to disclose or make accessible such information, (y) necessary in any
litigation or other proceeding between the parties, including, without
limitation, in connection with this Agreement or its enforcement.
5. Confidentiality. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret, proprietary or
confidential information, knowledge or data relating to the Affiliated
Entities and their respective businesses that he has obtained that is not
public knowledge (other than as a result of the Executive's violation of this
Section 5) ("Confidential Information"). For purposes of this Agreement,
"Confidential Information" shall not include information which is or becomes
generally known to the public, other than due to the Executive's violation of
this Section 5. The Executive shall not communicate, divulge or disseminate
Confidential Information at any time, except with the prior written consent of
the Company or as otherwise required by law or legal process or necessary to
the assertion of the Executive's entitlements (including any defense with
respect to any claim in connection with any litigation or other proceedings),
or in the carrying out of his duties under Section 7.
6. Releases. (a) In consideration of the payments and benefits
set forth in this Agreement, except for the rights expressly provided herein,
the Executive for himself, his heirs, administrators, representatives,
executors, successors and assigns (collectively "Releasors") does hereby
irrevocably and unconditionally release, acquit and forever discharge the
Company and its subsidiaries, shareholders, affiliates, divisions, trustees,
officers, directors, partners, agents, and former and current employees,
including without limitation all persons acting by, through, under or in
concert with any of them (collectively, "Releasees"), and each of them from
any and all charges, complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, remedies, actions, causes of action,
suits, rights, demands, costs, losses, debts and expenses (including
attorneys' fees and costs) of any nature whatsoever arising out of or relating
to his employment relationship, or the termination of that relationship, with
the Company and its Affiliated Entities, known or unknown, whether in law or
equity and whether arising under federal, state or local law and in particular
including any claim for discrimination based upon race, color, ethnicity, sex,
age (including the Age Discrimination in Employment Act), national origin,
religion, disability, or any other unlawful criterion or circumstance, which
the Executive and Releasors had, now have, or may have in the future against
each or any of the Releasees from the beginning of the world until the
Execution Date relating to the Executive's employment with the Company and its
subsidiaries and affiliates. Anything herein to the
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contrary notwithstanding, nothing herein shall release the Company from any
claims or damages based on (i) any right or claim that arises after the
Termination Date, (ii) any right, including any right to a payment or benefit,
the Executive may have under this Agreement and under any applicable plan,
policy, program or other agreement or arrangement with the Company except as
modified by this Agreement, (iii) his eligibility for indemnification in
accordance with applicable laws or the certificate of incorporation or by-laws
of the Company, or under any applicable insurance policy, with respect to any
liability the Executive incurs or has incurred as a director, officer or
employee of the Company or (iv) any right the Executive may have to obtain
contribution as permitted by law in the event of entry of judgment against him
as a result of any act or failure to act for which he and the Company are
jointly liable or (v) or any claim in respect of any brokerage account,
personal credit card account or other personal or business relationship with
the Company outside of the employment relationship. This Section 6(a) shall
not apply to any act by the Company that constitutes a criminal act under any
Federal, State or local law.
(b) The Executive acknowledges that: (i) this entire
Agreement is written in a manner calculated to be understood by him; (ii) he
has been advised to consult with an attorney before executing this Agreement;
(iii) he was given a period of twenty-one days within which to consider this
Agreement; and (iv) to the extent he executes this Agreement before the
expiration of the twenty-one-day period, he does so knowingly and voluntarily
and only after consulting his attorney. The Executive shall have the right to
cancel and revoke this Agreement during a period of seven days following the
Execution Date, and this Agreement shall not become effective, and no money
shall be paid hereunder, until the day after the expiration of such seven-day
period (the "Revocation Date"). The seven-day period of revocation shall
commence upon the Execution Date. In order to revoke this Agreement, the
Executive shall deliver to the Company's Chief Legal Officer, prior to the
expiration of said seven-day period, a written notice of revocation. Upon such
revocation, this Agreement shall be null and void and of no further force or
effect.
(c) The Executive acknowledges and agrees that the
consideration provided to him under the terms of this Agreement exceeds
anything to which he is otherwise entitled and that he is owed no wages,
commissions, bonuses, finder's fees, equity or incentive awards, severance
pay, vacation pay or any other compensation or payments or remuneration of any
kind or nature other than as specifically provided for in this Agreement or
the terms of any benefit plan in which the Executive participates. If
Executive should hereafter make any claim or demand or commence or threaten to
commence any action, claim or proceeding against the Releasees with respect to
any cause, matter or thing which is the subject of this Section 6, this
Agreement may be raised as a complete bar to any such action, claim or
proceeding, and the applicable Releasee may recover from the Executive all
costs incurred in connection with such action, claim or proceeding, including
attorneys' fees.
(d) The Company, its related entities, subsidiaries,
affiliates, partnerships and joint ventures and each of their predecessors and
successors also agree that, subject to this Agreement becoming effective, they
hereby irrevocably and unconditionally release, acquit and forever discharge
the Executive from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, remedies, actions,
causes of action, suits, rights, demands, costs, losses, debts and expenses
(including attorneys' fees and costs) of any nature whatsoever, known or
unknown, whether in law or equity and whether arising under federal, state or
local law that the Company had, now has, or may have in the
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future against the Executive from the beginning of the world until the
Execution Date arising out of or relating to the Executive's employment,
relationship, or the termination of that relationship with the Company and its
Affiliated Entities, except that this paragraph shall not apply to any act
that constitutes a criminal act under any Federal, state or local law
committed or perpetuated by the Executive during the course of the Executive's
employment with the Company or its affiliates (including any criminal act of
fraud, misappropriation of funds or embezzlement or any other criminal
action).
(e) None of the foregoing provisions of this Section 6
shall be considered as releasing the Company's or Executive's entitlements,
rights, or obligations with respect to any Stock Incentives or as otherwise
modifying the terms, conditions or limitations of, any Stock Incentives.
7. The Executive's Covenants. (a) Cooperation. For the period
ending 36 months after the Termination Date, the Executive shall make himself
available to the Company following the Termination Date to assist the
Affiliated Entities, as may be requested by the Company at mutually convenient
times and places, with respect to pending and future litigations,
arbitrations, governmental investigations or other dispute resolutions
relating to or in connection with matters that arose during the Executive's
employment with the Company provided that in no event shall the Executive be
required to provide any cooperation if such cooperation is materially adverse
to his legal interests. To the extent possible, the Company will try to limit
the Executive's participation to regular business hours. In any event, (i) in
any matter subject to this Section 7(a), the Executive shall not be required
to act against the best interests of any new employer or new business venture
in which he is a partner or active participant and (ii) any request for such
cooperation shall take into account (A) the significance of the matters at
issue in the litigation, arbitration, proceeding or investigation and (B) the
Executive's other personal and business commitments. The Company agrees to
provide the Executive reasonable notice in the event his assistance is
required. The Company will reimburse the Executive for all reasonable expenses
and costs he may incur as a result of providing such assistance, including
lost wages, travel costs and legal fees to the extent the Executive reasonably
believes that separate representation is warranted, provided the Company is
notified in advance of the amount of lost wages and receives proper
documentation with respect to all claimed expenses. The Executive's
entitlement to reimbursement of expenses, including legal fees pursuant to
this Section 7(a), shall in no way affect the Executive's rights to be
indemnified and/or advanced expenses in accordance with the Company's
corporate documents and/or in accordance with this Agreement. From and after
May 21, 2005, the Executive will be entitled to a fee of $1,000 per hour for
furnishing such cooperation (including, without limitation, for time taken in
travel undertaken in connection with such cooperation) for up to 10 hours and
$3,000 per hour thereafter, such fee to be paid promptly following his
submission of a statement setting forth the number of hours spent.
(b) For the period ending 36 months after the Termination
Date, the Executive agrees that he shall not offer assistance or testimony in
any action against the Company brought by any other entity, individual or
individuals, unless ordered to do so by a court, agency or regulatory
authority, and then only after the Executive has given the Company's Chief
Legal Officer written notice, together with all supporting legal papers or
documents served upon him, within a reasonable period of time of his receipt
of such notice.
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(c) Cooperation with Government and Regulatory
Authorities. Any non-disclosure provision in this Agreement does not prohibit
or restrict the Executive or his attorneys from responding to any inquiry
about this Agreement or its underlying facts and circumstances by the
Securities and Exchange Commission, the National Association of Securities
Dealers, Inc. or any other self-regulatory organization. Nothing in this
Agreement prohibits or restricts the Executive from testifying or providing
information to or assisting in an investigation or proceeding brought by any
governmental or regulatory body or official(s), or from testifying,
participating in or otherwise assisting in a proceeding relating to an alleged
violation of any Federal or state law relating to fraud or to any rule or
regulation of the Securities and Exchange Commission or to any self regulatory
organization, and the notice provisions in the preceding paragraph shall not
apply in connection with any such investigation or proceeding.
(d) Remedies. The Executive acknowledges and agrees that
because of the nature of the business in which the Company and the other
Affiliated Entities are engaged and because of the nature of the Confidential
Information to which the Executive has had access during his employment, it
would be impractical and excessively difficult to determine the actual damages
of the Company and the other Affiliated Entities in the event the Executive
breached any of the covenants of Sections 4 or 5, and remedies at law (such as
monetary damages) for any breach of the Executive's covenants under Sections 4
or 5 would be inadequate. The Company acknowledges and agrees that it would be
impractical and excessively difficult to determine the actual damages of the
Executive in the event the Company breached any of the covenants of Sections 4
and 5, and remedies at law (such as monetary damages) for any breach of the
Company's covenants under Sections 4 and 5 would be inadequate. The parties
therefore agree and consent that if either of them commits any such breach or
threatens to commit any such breach, the other party shall have the right (in
addition to, and not in lieu of, any other right or remedy that may be
available to it) to temporary and permanent injunctive relief from a court of
competent jurisdiction, without posting any bond or other security and without
the necessity of proof of actual damage. With respect to any provision of
Sections 4 or 5 that is finally determined to be unenforceable, the Executive
and the Company hereby agree that this Agreement or any provision hereof may
be reformed so that it is enforceable to the maximum extent permitted by law.
If any of the covenants of Sections 4 or 5 is determined to be wholly or
partially unenforceable in any jurisdiction, such determination shall not be a
bar to or in any way diminish the Company's right to enforce any such covenant
in any other jurisdiction.
8. Return of Property. The Executive shall permit a
representative of the Company to inspect any material to be removed from the
Company's offices. By the Termination Date (or shortly thereafter) the
Executive shall surrender to the Company all property of the Affiliated
Entities in the Executive's possession, including, without limitation, any and
all records, manuals, customer lists, notebooks, computers, computer programs,
cellular phones, and files, papers, electronically stored information and
documents kept or made by the Executive in connection with the Executive's
employment. Anything to the contrary notwithstanding, and in all cases
regardless of whether the information is retained in original form, as a copy,
electronically or otherwise, the Executive shall be entitled to retain (A)
papers and other materials of a personal nature, including, without
limitation, photographs, correspondence, personal diaries, calendars and
rolodexes, files relating to his personal affairs and personal phone books,
(B) information showing his compensation or relating to reimbursement of
expenses, (C) information he reasonably believes may be needed for his
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personal tax purposes and (D) copies of plans, programs and agreements
relating to his employment, or termination thereof, with the Company.
9. Gross-Up Payment. If any payment or benefit made or provided
to the Executive under this Agreement or under any plan, program or other
arrangement of the Company or any Affiliated Entity, separately or in the
aggregate with other such payments and benefits (a "Payment") results in the
Executive being subject to the excise tax under Section 4999 of the Internal
Revenue Code of 1986, as amended (or any successor or similar provision), then
the Company shall pay to the Executive, prior to the time that such tax is
payable by the Executive, an additional amount of cash (the "Additional
Amount") such that the net amount of all payments and benefits received by the
Executive under this Agreement or under any plan, program or other arrangement
of the Company or any Affiliated Entity after paying all applicable taxes
thereon, including on such Additional Amount, shall be equal to the net
after-tax amount of payments and benefits that the Executive would have
received if Section 4999 were not applicable.
10. Entire Agreement; Other Benefits. This Agreement sets forth
the entire agreement of the Company and the Executive with respect to the
subject matter hereof, and supersedes any severance plan, policy or
arrangement of any of the Affiliated Entities. Without limiting the generality
of the foregoing, the Executive expressly acknowledges and agrees that except
as specifically set forth in this Agreement, he is not entitled to receive any
severance pay, severance benefits, compensation or employee benefits of any
kind whatsoever from any of the Affiliated Entities.
11. Successors. This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by
the Executive other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors.
12. Amendment. This Agreement may be amended, modified or changed
only by a written instrument executed by the Executive and the Company. Any
waiver to be effective must be in writing and signed by the party against whom
it is being enforced.
13. Governing Law; Arbitration. (a) This Agreement shall be
governed by and construed in accordance with the laws of the State of New
York, 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.
(b) Any disputes, controversies and claims arising out of
or relating to this Agreement shall be determined by an arbitral tribunal of
three arbitrators under the rules of the American Arbitration Association in
New York, New York. Each party shall bear its own expenses in the arbitration.
This paragraph shall not, however, be deemed a waiver of either party's right
to injunctive relief as provided in paragraph 7(c).
14. Notices. All notices and other communications hereunder shall
be in writing; shall be delivered by hand delivery to the other party or
mailed by registered or certified
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mail, return receipt requested, postage prepaid; shall be deemed delivered
upon actual receipt; and shall be addressed as follows:
If to the Executive:
At the last address on
File with the Company
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as either party shall have furnished to the other in
writing in accordance herewith.
15. Tax Withholding. Notwithstanding any other provision of this
Agreement, the Company may withhold from any amounts payable under this
Agreement, or any other benefits received pursuant hereto, such minimum
Federal, state and/or local taxes as shall be required to be withheld under
any applicable law or regulation.
16. No Mitigation; No Offset. 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 under this Agreement. There shall be no
offset by the Company against the Executive's entitlements under this
Agreement for any compensation or other amounts that he earns from subsequent
employment or engagement of his services on account of any claim that the
Company may have against him. In no event shall the Company have a right of
offset against any account that the Executive maintains with the Company,
including without limitation, his brokerage account, on account of any claims
arising under this Agreement.
17. Company Representation. The Company represents and warrants to
the Executive that (i) the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized on behalf of the Company by its Board of
Directors or a committee thereof and that all corporate action required to be
taken by the Company for the execution, delivery and performance of this
Agreement has been or promptly shall be duly and effectively taken; (ii) the
officer signing this Agreement on behalf of the Company is duly authorized to
do so; (iii) the execution, delivery and performance of this Agreement by the
Company does not violate any applicable law,
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regulation, order, judgment or decree or any agreement, plan or corporate
governance document to which the Company is a party or by which it is bound;
and (iv) upon execution and delivery of this Agreement by the parties, it
shall be a valid and binding obligation of the Company enforceable against it
in accordance with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
18. The Executive will be provided with indemnification rights
(including the right to be reimbursed costs) and with directors' and officers'
liability insurance coverage with respect to his acts or omissions while at
the Company which is no less favorable than that provided to members of the
Management Committee (or equivalent successor committee) of the Company from
time to time.
19. This Agreement may be executed in counterparts by facsimile
signatures.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date first set forth above.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
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Exhibit A
Cancellation Events are:
You engage in Competition;
Your employment is terminated for Cause;
Following the termination of your employment, the Firm determines
that your employment could have been terminated for Cause;
You disclose Proprietary Information to any unauthorized person
outside the Firm, or use or attempt to use Proprietary Information other
than in connection with the business of the Firm, where such disclosure,
use or attempt to use may be adverse to the interests of the Firm; or you
fail to comply with your obligations (either during or after your
employment) under the Firm's Code of Conduct (and any applicable
supplements) or otherwise existing between you and the Firm, relating to
an assignment of rights in Proprietary Information;
You engage in a Wrongful Solicitation; or
You make any Unauthorized Comments.
Cause means:
any act or omission which constitutes a breach of your obligations to
the Firm or your failure or refusal to perform satisfactorily any duties
reasonably required of you;
your commission of any dishonest or fraudulent act, or any other act
or omission, which has caused or may reasonably be expected to cause
injury to the interest or business reputation of the Firm; or
your violation of any securities, commodities or banking laws, any
rules or regulations issued pursuant to such laws, or rules or
regulations of any securities or commodities exchange or association of
which the Firm is a member or of any policy of the Firm relating to
compliance with any of the foregoing.
Competition means that you (1) enter into a relationship as an employee,
officer, partner, member, director, independent contractor, consultant,
advisor or agent of, or in any similar relationship, with a Competitor where
you will be responsible for providing services which are
similar or substantially related to the services that you provided during any
of the last three years of your employment with the Firm, or (2) either alone,
or in concert with others, acquire beneficial ownership (within the meaning of
Section 13(d) of the Exchange Act) of 5% or more of any class of equity
securities of a Competitor.
Competitor means:
o American Express Company,
o American International Group, Inc.,
o Bank of America Corporation,
o The Bear ▇▇▇▇▇▇▇ Companies Inc.,
o The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation,
o Citigroup, Inc.,
o Credit Suisse Group,
o Deutsche Bank AG,
o The ▇▇▇▇▇▇▇ Sachs Group, Inc.,
o ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇ ▇▇▇▇▇▇ Brothers Holdings Inc.,
o Merrill ▇▇▇▇▇ & Co., Inc.,
o UBS AG,
o The Blackstone Group,
o Kohlberg Kravis ▇▇▇▇▇▇▇ and Co.
o Barclays Capital Group (Barclays Bank PLC),
o Cantor ▇▇▇▇▇▇▇▇▇▇, ▇.▇.,
o CIBC World Markets (Canadian Imperial Bank of Commerce),
o Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ (Allianz AG),
o Greenhill & Co., Inc.,
o HSBC Securities (HSBC Holdings plc),
o Nomura Securities (Nomura Group),
▇ ▇▇▇▇▇▇▇▇▇▇▇ (Allianz AG),
o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (AXA Group),
o Societe Generale,
o Daiwa Securities Group, Inc.,
o Daiwa SMBC,
o Lazard Brothers & Co., Ltd.,
o Nikko Cordial Group,
o Shinsei Bank,
o Mitsubishi Tokyo Financial Group (Mitsubishi Securities),
o Mizuho Financial Group, Inc. (Mizuho Securities),
o UFJ Holdings, Inc. (UFJ Tsubasa Securities),
o Credit Agricole Indosuez Securities,
o BNP Paribas SA.
o ▇.▇. ▇▇▇▇▇▇▇, Inc.,
o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the ▇▇▇▇▇ Financial Companies, L.L.L.P.),
o Fidelity Investments (FRM Corp.),
▇ ▇▇▇▇ ▇▇▇▇▇, Inc.,
o Wachovia Securities,
o CIBC Oppenheimer,
o RBC Financial Group (▇▇▇▇ ▇▇▇▇▇▇▇▇),
o H&R Block, Inc.,
▇ ▇▇▇▇▇▇ Brettal ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC,
o The Penn Mutual Life Insurance Company (▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇),
o Regions Financial Corporation (▇▇▇▇▇▇ ▇▇▇▇▇▇),
o LPL Financial,
o KeyCorp (McDonald Investments, Inc.),
o National City Corporation,
o ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies,
o Raymond ▇▇▇▇▇ Financial, Inc.,
o BankAtlantic Bankcorp (▇▇▇▇ ▇▇▇▇),
o Pacific Mutual Holding Company (▇▇ ▇▇▇▇▇),
o Wells Fargo & Company.
o Aetos Capital,
o AIM Management Group (AMVESCAP PLC),
o Alliance Capital Management (AXA Group),
o Blackrock (The PNC Financial Services Group, Inc.),
o Fidelity Investments (FMR Corp.),
o Front Point Partners LLC,
▇ ▇▇▇▇▇▇▇▇▇▇▇ Funds (Massachusetts Mutual Life Insurance Company),
o PIMCO Advisors (Allianz AG),
▇ ▇▇▇▇▇▇ Investments (▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Companies, Inc.),
o ▇. ▇▇▇▇ Price Group, Inc.,
o Wellington Management Company, LLP,
o Evergreen Investment Management Company, LLC,
o The Capital Group Companies, Inc.,
o TIAA-CREF,
o Capital One Financial Corp.,
o MBNA Corporation,
o Providian Corporation,
o Visa,
o Mastercard,
o First Data,
o HSBC,
o Barclays Bank,
o Halifax Bank of Scotland,
o Natwest,
o Concord EFS,
o General Electric,
o Global Payments, Inc.,
o Synovus Financial Corp. (Total Systems Services),
o Fiserv, Inc.,
▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corp.
"Competitor" also includes, for each entity listed above, that
entity's parent entities, subsidiaries and other affiliates, and such
entity's successor or surviving entities (whether as a result of merger,
consolidation, sale of business, reincorporation or any similar
transaction).
Proprietary Information means any information that may have intrinsic value to
the Firm, the Firm's clients or other parties with which the Firm has a
relationship, or that may provide the Firm with a competitive advantage,
including, without limitation, any trade secrets; inventions (whether or not
patentable); formulas; flow charts; computer programs; access codes or other
systems information; algorithms; technology and business processes; business,
product, or marketing plans; sales and other forecasts; financial information;
client lists or other intellectual property; information relating to
compensation and benefits; and public information that becomes proprietary as
a result of the Firm's compilation of that information for use in its
business, provided that such Proprietary Information does not include any
information which is available for use by the general public or is generally
available for use within the relevant business or industry other than as a
result of your action. Proprietary Information may be in any medium or form,
including, without limitation, physical documents, computer files or disks,
videotapes, audiotapes, and oral communications.
You will be deemed to have made "Unauthorized Comments" about the Firm if,
while Employed or following the termination of your Employment you make,
directly or indirectly, any negative, derogatory, or disparaging comment,
whether written, oral or in electronic format, to any reporter, author,
producer or similar person or entity or to any general public media in any
form (including, without limitation, books, articles or writings of any other
kind, as well as film, videotape, audio tape, computer/Internet format or any
other medium) that concerns directly or indirectly the Firm, its business or
operations, or any of its current or former agents, employees, officers,
directors, customers or clients.
A "Wrongful Solicitation" occurs upon either of the following events:
while Employed or within 180 days following termination of your
Employment, you directly or indirectly hire or attempt to hire any person
who is, or during the 90 days preceding termination of your employment
was, employed by the Firm; or
while Employed or within 90 days following termination of your
Employment, you solicit any business of any person or entity who is or
was a customer or client of the Firm, or works for, or on behalf of, any
such customer or client, provided, however, that you had worked on a
project or assignment for such customer or client during the 90 days
preceding the termination of your Employment.
Exhibit B
(*)
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(*) CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
Exhibit C
(*)
----------
(*) CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.