EXHIBIT 10 (nn)
June 18, 1999
Xx. Xxxx X. Xxxxxxxxxx
C/o The Bank of New York
00 Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Consulting Agreement
Dear Xxxx:
This letter confirms the terms and conditions of your
engagement as a consultant to assist The Bank of New York Company, Inc. ("BNY
Co.") in tasks assigned pursuant to this agreement after your retirement from
BNY Co. and The Bank of New York ("BNY") and your resignation as a director of
BNY Co. effective July 16, 1999.
1. Services. You agree to render such services to BNY
Co., its subsidiaries or affiliates as the Chairman of BNY Co. shall from time
to time request (the "Services") and, in particular, relating to BNY Co.'s
financial statements and strategic planning. In rendering Services hereunder
you shall report to the Chairman of BNY Co.
2. Term. This agreement shall be effective immediately
after you retire from BNY Co. and BNY on July 16, 1999 (the "Effective Date").
Subject to Section 8, it shall continue in effect through the first
anniversary of the Effective Date and shall be extended automatically for
additional one (1) year periods unless, no later than 90 days prior to each
anniversary of the Effective Date, either party shall have given notice to the
other that it does not wish to extend this Agreement.
3. Consulting Fee. Consultant shall be entitled to a fee
for Services rendered in the amount of $200,000.00 (the "Consulting Fee"), for
each year that the term of this Agreement remains in effect. The Consulting
Fee shall be payable by BNY Co. in equal quarterly installments in arrears and
shall cover Services rendered by you up to 40 days per each year during the
term of this agreement. For each day in each year of the term of this
agreement that you provide services in excess of 40 days, BNY Co. shall pay to
you a per diem consulting fee of $5,000.00 (the "Per Diem Fee"). The Per Diem
Fee shall be payable promptly after you submit your invoice to BNY Co. As
hereinafter referred to, "Consulting Fee" shall include the Per Diem Fee.
You shall be responsible for the payment of all
applicable taxes levied or based upon any portion of the Consulting Fee paid
by BNY Co., including SECA and federal, state and local income taxes.
In addition, BNY Co. shall pay you a pro rata bonus
for 1999 based on (i) the achievement of performance goals established for you
under the 1994 Management Incentive Compensation Plan of The Bank of New York
Company, Inc. and (ii) the number of full months elapsed in 1999 prior to your
retirement.
4. Reimbursement for Expenses. BNY Co. shall reimburse
you for all reasonable costs and expenses incurred by you in connection with
the rendering of Services hereunder. You shall periodically submit invoices to
BNY Co. for reimbursement of costs and expenses incurred.
5. Confidential Information. You shall hold all
Confidential Information (as defined below) at all times in trust and
confidence for BNY Co., its subsidiaries and affiliates from the time you
acquire such Confidential Information. You shall not use any such Confidential
Information for your own benefit or for the benefit of any other person and,
except as authorized by BNY Co. or its designee in writing, you shall not
disclose to any person or entity any such Confidential Information. Upon
termination of this agreement, if requested by BNY Co. or its designee, you
shall deliver to BNY Co. originals and copies of all reports, your notes and
work papers, documents, correspondence, manuals, tapes and any and all other
materials in your possession or under your control which may contain
confidential information. As used herein, Confidential Information means any
and all information of a confidential or otherwise non-public nature obtained
by you from, or disclosed to you by, BNY Co. or any of its subsidiaries or
affiliates or any of its or their directors, officers, employees, agents or
representatives relating in any way to past, present of future business
affairs, financial information, methods or processes of BNY Co. or any of its
subsidiaries or affiliates. Your obligations under this Section 5 shall
survive any termination or expiration of this agreement.
6. Non-Competition: Exclusivity. During the term of this
agreement, you shall not, directly or indirectly, own, manage, operate, join,
control or otherwise carry on, participate in the management, operation or
control of, consult for, or be engaged in or concerned with any commercial
bank, securities firm or other entity or person that is or is seeking to
become competitive with BNY Co., its subsidiaries or affiliates.
Notwithstanding the foregoing provisions of this Section, nothing shall
prevent you from owning less than 5% of the outstanding shares of any entity
actively traded on a recognized securities exchange or NASDAQ.
7. Independent Contractor. You shall act hereunder as an
independent contractor, shall not be subject to any formal schedule of duties
or hours, and shall in no event be deemed an employee of BNY Co., its
subsidiaries or affiliates for purposes of employee benefits or otherwise,
merely as a consequence of this agreement or your rendering of Services. This
agreement and the rendering of Services shall not in any way affect your
rights or benefits as a retired BNY employee, including without limitation any
employee benefit (whether pension or otherwise) earned or accrued as a BNY
employee prior to the Effective Date and any fees earned as a member of the
Board of Directors of BNY Co.
8. Termination. Upon written notice to you, BNY Co. may
at any time terminate this agreement with or without Cause (defined below). If
BNY Co. terminates this agreement without Cause, it shall be obligated to pay
you any unpaid portion of the annual Consulting Fee when otherwise due. If BNY
Co. terminates this agreement with Cause, it shall only be obligated to pay
you that portion of the annual Consulting Fee that has accrued through the
last day you render Services.
Upon written notice to BNY Co., you may at any time
terminate this agreement, in which case BNY Co. shall only be obligated to pay
you that portion of the annual Consulting Fee that has accrued through the
last day you render Services.
In the event of your death or Disability (defined
below), this agreement shall terminate and BNY Co. shall have no further
obligation to pay any party, including your estate, any unpaid portion of the
Consulting Fee and your estate shall have no obligation to reimburse BNY Co.
for any portion of the Consulting Fee which has been paid to you.
As used herein, Cause means you have (i) materially
breached this agreement, (ii) failed, after being provided with notice and
reasonable opportunity to cure, to render any Services required under this
agreement, (iii) breached any of your fiduciary duties to BNY Co., its
subsidiaries or affiliates, or (iv) been convicted of any felony.
As used herein, Disability shall mean your inability
due to a physical or mental disability, for a period of 90 days, regardless of
whether consecutive, during any 360 day period to perform the services
contemplated under this agreement. A determination of Disability shall be made
by a physician satisfactory to both you and BNY Co., provided that if you and
BNY Co. do not agree on a physician, you and BNY Co. shall each select a
physician and these two physicians together shall select a third physician,
whose determination as to Disability shall be binding on you and BNY Co.
9. Complete Agreement: Modification. This agreement
contains the entire agreement of the parties with respect to the subject
matter hereof. It may not be amended expect in writing signed by both parties.
In case any one or more of the provisions contained herein shall be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect the other provisions herein, and this
agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. If, moreover, any one or more of
the provisions contained herein shall for any reason be held to be excessively
broad as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
10. Binding Nature: Assignment. This agreement shall be
binding on and inure to the benefit of the parties hereto and may not be
assigned by either party. Notwithstanding the foregoing, BNY Co. may assign
this agreement to any entity controlled by, or under common control with, it
without your consent.
11. Limitation of Liability. Except as otherwise
expressly provided herein, you assume no responsibility under this agreement
other than to render the Services called for hereunder in good faith and shall
not be liable to BNY Co. except for your acts or omissions constituting bad
faith, willful misconduct, gross negligence or reckless disregard of your
duties.
12. Applicable Law. You will comply with all applicable
laws in rendering Services under this agreement. This agreement shall be
governed by and construed in accordance with the substantive laws, and not the
choice of law rules, of the State of New York.
If the foregoing reflects our understanding, please
sign and return the duplicate copy of this letter to the undersigned.
Very truly yours,
THE BANK OF NEW YORK ACCEPTED AND AGREED:
COMPANY, INC.
By: \s\ Xxxxxx X. Renyi \s\ Xxxx X. Xxxxxxxxxx
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Xxxxxx X. Renyi Xxxx X. Xxxxxxxxxx
Chairman and
Chief Executive Officer
