Exhibit 10.29
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") made as of the 22 day of
December 1997 between Atalanta/Sosnoff Capital Corporation (Delaware)
("Capital") and Atalanta/Sosnoff Management Corporation ("Management"), on the
one hand, and Xxxxx X. Xxxxx (the "Executive"), on the other hand. Capital and
Management are sometimes referred to collectively herein as the "Company.'
WHEREAS, the Executive is currently an officer of Capital and Management,
entities comprising the Company, and
WHEREAS, the Company believes it is in the best interests of the Company to
retain the Executive as an executive of the Company on the terms herein
provided; and
WHEREAS, the Executive is desirous of committing himself to serve the
Company on the terms herein provided;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows.
1. Effectiveness. This Agreement shall be effective July 1,1997 (the
"Effective Date") upon the execution of this Agreement by the Company and the
Executive.
2. Employment. The Company hereby agrees to employ the Executive, and the
Executive hereby accepts such employment, on the terms and conditions set forth
herein for the period commencing on the Effective Date and expiring on December
31, 1999, unless such employment is sooner terminated as hereinafter set forth
(such period is hereinafter sometimes referred to as the "Term of Executive's
Employment").
3. Position and Duties.
(a) During the Term of Executive's Employment hereunder, the Executive
shall serve as Senior Vice-President West Coast Marketing reporting to the
Executive Vice President and Chief Operating Officer and, if the Company employs
a Director of Marketing, to such Director of Marketing and to the Executive Vice
President and Chief Operating Officer jointly, and to the Board of Directors of
the Company, and subject to such reporting shall have supervision and control
over, and responsibility for the marketing of investment management services
offered by the Company and its subsidiaries and affiliates, including Capital
and Management, on the West Coast of the United States and the Pacific Rim and
shall have such other powers and duties as may from time to time be prescribed
by the Company. The Executive shall devote his entire working time and efforts
to the business and affairs of the Company.
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4. Compensation.
(a) Executive Base Compensation. During the Term of Executive's Employment
hereunder, the Executive shall receive a base salary at the annual rate of not
less than $175,000 (including deferred amounts) (the "Executive Base
Compensation"), commencing upon the Effective Date or such amount in excess of
Executive Base Compensation as the Company shall from time to time determine in
its discretion, payable at such intervals or times as shall accord with the
Company's normal procedure for similarly situated executives of the Company.
(b) Sales Payout with respect to clients of the Company who become such
clients during the Term of Executive's Employment as a direct result of the
Executive's efforts shall be computed and paid as follows:
(i) Executive shall receive a sales payout with respect to investment
advisory fees received by the Company from such clients in an amount equal
to twenty percent (20%) of the investment advisory fees received by the
Company from each such client in respect of the first twelve (12) months
during which such client is a client.
(ii) Executive shall receive continuing payments after such first
twelve month period in an annual amount equal to ten percent (10%) of the
investment advisory fees received by the Company from such clients.
(iii) With respect to Investment Accounts (as hereinafter defined), in
lieu of the payments set forth in subparagraphs (i) and (ii) hereof,
Executive shall
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receive a sales payout with respect to investment advisory fees received by
the Company from each such client who opens a limited partners account,
shareholders account, or other equity owners account (an "Investment
Account") as a limited partner in partnerships, or as a shareholder in
foreign or domestic corporations, or as an equity owner in other entities,
respectively, organized as private investment companies sponsored by the
Company, under which the client participates with others as a limited
partner, shareholder or equity owner, as applicable, in the investment
returns of any such partnership, corporation or other entity and of which
the Company is a general partner or investment manager, in the amount of
fifteen percent (15%) of the investment advisory fees received by the
Company wits respect to the first twelve (12) months in which such
Investment Account is open at any such partnership, corporation or other
entity and five percent (5%) with respect to any subsequent period during
the Term of Executives' Employment hereunder. For the purposes hereof any
performance allocation or profit participation to the general partner or
investment manager of any such partnership, corporation or other entity if
the recipient is the Company, shall be considered, together with any
investment management fee, as advisory fees. Notwithstanding the foregoing,
with respect to any Investment Account opened in (A) Sabre Capital
International, Ltd., a British Virgin Island Investment Fund (Sabre
Capital), as a direct result of Executive's efforts, if Executive has
employed an independent solicitor, after consultation with and with the
approval of the Company, unless the parties shall otherwise agree, the
Executive shall receive the
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difference between the amount paid such solicitor and 20% of the investment
advisory fees received by the Company during the Term of Executive's
Employment hereunder and (B) Sabre Partners, L.P., a Delaware limited
partnership, or in Sabre Capital, without the use of Company approved
independent solicitor, as a direct result of Executive's efforts, Executive
shall receive ten percent (10%) of the investment advisory fees received by
the Company during the Term of Executives Employment hereunder.
(iv) Payments shall be made within seventy-five (75) days after the
end of the quarter in which the Company receives the fees upon which such
payments are based. Notwithstanding subparagraphs (i), (ii) and (iii)
hereof, no sales payout shall be made by the Company with respect to any
advisory fees received by the Company on any client account if such account
at the time the computation is made upon which such advisory fee payment is
based is less than the following minimum with respect to the indicated
types of accounts:
Minimum Type of Account
------------------ ------------------------------
(A) $500,000 Investment Account
(B) $1 Million Non-Investment Account
custodied at Bear, Xxxxxxx
(C) $5 Million Non-Investment Account
not custodied at Bear, Xxxxxxx
(D) $250,000 "Wrap Account"
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All of the foregoing minimums shall be based on net capital contributions to the
account and not on increases in the value thereof attributable to the market
performance of the account. Notwithstanding the foregoing, Executive shall
receive sales payouts with respect to any account which did not equal or exceed
the foregoing minimums when it was opened commencing with respect to the fifth
consecutive quarter in which the account did exceed the applicable minimum and
thereafter.
All determinations as to whether a client has become a client of the
Company as a direct result of Executive's efforts shall be made by the Company
in the exercise of its reasonable discretion.
(v) In addition to the foregoing sales payouts, Executive shall
receive sales payouts during the Term of Executive's Employment with
respect to each client account and Investment Account existing as of the
Effective Date the name of which is set forth on the annexed Schedule A, in
the percentage set forth after each such account's name.
(vi) The Company has advised Executive that it may from time to time
require Executive to service certain accounts which he was not responsible
for opening and that he will be compensated at the rate of 5% of the
investment advisory fees received by the Company in accordance with the
Company's normal practices for
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its sales personnel. Any such accounts shall be identified in written
memoranda and shall be signed by the Executive and the Company.
(c) Expenses. During the Term of Executive's Employment hereunder, the
Executive shall be entitled to receive reimbursement for all reasonable expenses
incurred by him (in accordance with the policies and procedures currently in
effect for the executive officers of the Company) in performing services
hereunder, provided that the Executive properly accounts therefor in accordance
with Company policy.
(d) Fringe Benefits. The Executive shall be eligible to participate in or
receive benefits under any profit-sharing or pension plan, savings plan, stock
option plan, stock purchase plan, life insurance and/or death benefits plan,
health-and-accident plan, or arrangement currently made available by the Company
or made available in the future to its executives and key management employees,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. Nothing paid to the Executive
under any plan or arrangement presently in effect or made available in the
future shall be deemed to be in lieu of compensation to the Executive hereunder.
(e) Perquisites. The Executive shall be entitled to receive perquisites
appertaining to, and consistent with, his office in accordance with such
practices as may be adopted by the Company from time to time.
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5. Offices; Directorships. The Executive agrees to serve without additional
compensation, when elected or appointed thereto, in one or more offices in, the
Company or any subsidiary or affiliate of the Company.
6. Termination.
(a) Disability. If, based on independent medical advice, from a physician
selected by the Company, from a teaching hospital with expertise in the apparent
disability, the Board of Directors determines that, due to physical or mental
illness, the Executive has been unable to effectively perform his duties as a
sales, marketing and client service officer hereunder for three consecutive
months or four non-consecutive months in any twelve month period, the Company
may terminate the employment of the Executive by delivering a Notice of
Termination specifying a termination date not less than three months subsequent
to such Notice of Termination. The return of the Executive to the performance of
his duties in accordance with Section 3 hereof prior to the specified
termination date shall not render such notice ineffective for the purpose of
terminating Executive's employment hereunder.
(b) Termination by the Executive. The Executive may terminate his
employment hereunder voluntarily, provided that the Executive delivers to the
Company a Notice of Termination specifying a termination date not less than
ninety (90) days subsequent to the date of such Notice of Termination.
(c) Termination by the Company. The Company may terminate the employment of
the Executive, with or without cause, by delivering a Notice of
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Termination specifying a termination date not less than ninety (90) days
subsequent to such Notice of Termination, except that, in the case of a
Termination for Cause (as herein defined), a Notice of Termination shall be
effective immediately. A `Termination Without Cause" shall mean a termination of
the Executive's employment hereunder, other than a `Termination for Cause" as
defined herein and other than pursuant to subsections (a), (b) or (d) hereof. A
`Termination for Cause" shall mean a termination based upon the determination by
the Board of Directors in the exercise of its reasonable discretion that one of
the following events has occurred: (1) the Executive has been convicted of any
crime involving moral turpitude, any felony, or any fraud or misrepresentation
(whether or not involving a sentence of incarceration or fine); (2) Executive
shall have become a subject of a proceeding before a judicial or administrative
body of competent jurisdiction in which violation of federal or state law
relating to securities is alleged; (3) Executive shall have become the subject
of publicity or notoriety reasonably related to the Company's business, which in
the judgment of the Chairman of the Board is inconsistent with the maintenance
of the Company's good reputation; (4) Executive shall have failed after written
notice from the Company to have preserved and enhanced client relationships with
the Company, or to have professionally represented the Company's interests in
marketing its services or to have otherwise acted in the Company's best
interests; or (4) Executive shall have breached a material provision of this
Agreement.
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(d) The Executive's employment hereunder shall terminate upon his death.
(e) Any termination (i) by the Company pursuant to subsections 6(a) or (c)
above or (ii) by the Executive pursuant to subsection 6(b) above shall be
communicated by written Notice of Termination ("Notice of Termination") to the
other party hereto. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision
relied upon, and shall set forth the facts and circumstances claimed to provide
a basis for termination of the Executive's employment hereunder.
(f) "Date of Termination" shall mean (i) if the Executive's employment is
terminated by his death, the date of his death, (ii) if the Executive's
employment is terminated under Section 6(a), on the date the Executive's
employment is terminated by the Company in accordance with a Notice of
Termination under Section 6(a), (iii) if the Executive's employment is
terminated pursuant to a Notice of Termination under Section 6(c) the date upon
which such termination becomes effective pursuant to this Agreement and such
Notice of Termination, and (iv) December 31, 1999, if the Executive is employed
by the Company at such date.
(g) Except in the case of a Termination Without Cause, pursuant to Sections
6(c) the Executive shall be paid his Base Compensation earned to the Date of
Termination. In the case of Termination Without Cause during the Executive's
employment under this Agreement pursuant to Section 6(c) the Executive
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shall be paid by the Company his Base Compensation for a period commencing on
the day following the Date of Termination and ending six months from the Date of
Termination.
(h) Notwithstanding the provisions of Paragraph (g) of this Section 6,
except in the case of a Termination for Cause, in addition to the payments of
Base Compensation as set forth in paragraph (g), the Executive shall be entitled
to the additional continuing payments after the Term of Executive's Employment
hereunder as follows:
(i) For the purposes of computing Executive's continuing payments
pursuant to this Section 6(h), the assets under management by the Company
in each of the accounts with respect to which Executive receives
compensation pursuant to Sections 4(b) hereof (the "Compensable Accounts")
shall be determined as of the date of the end of the Term of Executive's
Employment under this Agreement (such assets determined as of such date,
with net additions after such date attributable to net capital
contributions resulting from the direct efforts of the Executive, as
determined by the Company in the exercise of its reasonable discretion, are
referred to herein as the "Base Amount" for each Compensable Account). All
continuing payments payable to Executive pursuant to this Section 6(h)
hereof shall be computed hereunder as if for the purposes hereof the
advisory fees received by the Company were computed on assets in each
Compensable Account equal to the lesser of the (A) Base Amount for each
Compensable Account or (B) 100% of the actual amount of assets in each
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Compensable Account as of the advisory fee computation date for such
Compensable Account. Continuing payments pursuant to this paragraph 6(h)
shall be made with respect to advisory fees received allocable to the two
consecutive annual periods of twelve months each (each of which is referred
to herein as an "Annual Period"), the first of which shall commence as of
the beginning of the month in which the Date of Termination as defined
herein shall have occurred, and shall be payable quarterly in arrears, no
later than seventy-five (75) days following the end of each quarter.
(ii) Executive or his legal representative shall have the right, prior
to the date on which he is entitled to payment with respect to each Annual
Period pursuant to the Company's obligation to make continuing payments
computed and payable under paragraph (h), subparagraph (i) of this Section
6, but not later than thirty (30) days prior to the beginning of each such
Annual Period, to elect to defer the receipt of the amount (the "Deferral
Amount") otherwise payable under such subparagraph (i) by delivery of a
written notice (the "Deferral Notice") to the Company specifying his
decision to defer payment of the Deferral Amount and instructing the
Company to pay the Deferral Amount to the Executive in equal quarterly
installments of principal and interest over a period to be specified by the
Executive, but not exceeding ten years (the "Deferral Period"). Interest on
the principal amount of the Deferral Amount shall be computed on the unpaid
balance thereof at the "applicable federal rate" as defined in Section
1274(d) of the Internal Revenue Code of I 986, as amended,
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(the "Code") (or applicable successor section of the Code) for the Deferral
Period selected by the Executive.
(iii) Upon receipt of the Deferral Notice by the Company instructing
the Company to defer the Deferral Amount pursuant to subparagraph (ii) of
paragraph (h) of this Section 6, and the execution of the instructions
contained therein by the Company, the Company shall be discharged from any
further obligation to make continuing payments to the Executive of the
amounts otherwise payable to him pursuant to subparagraph (i) of paragraph
(h) of this Section 6, except as provided in such subparagraph (ii).
(iv) The Company makes no representation with respect to the federal,
state or local tax consequences to Executive of the deferral of amounts
otherwise payable under subparagraph (i) of paragraph (h) of this Section
6, or of payments made under subparagraph (ii) of paragraph (h) of this
Section 6 by the Company pursuant to his instructions in the Deferral
Notice, and Executive acknowledges that, in the event that it shall be
determined by any tax authority that all or any part of the Deferral Amount
is required to be currently recognized by him for federal, state or local
income tax purposes at any time prior to receipt of payment thereof under
such subparagraph (ii) or otherwise, any such tax consequences shall be
solely Executive's responsibility and borne by him for his account, and
Executive hereby agrees to indemnify the Company with respect thereto and
hold it harmless.
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(v) Except in the case of a Termination for Cause, if after the Term
of Executive's Employment as provided herein, the Executive shall request,
at a time when he is no longer employed by the Company, that he become a
soliciting agent exclusively on behalf of the Company, the Company shall
offer the Executive compensation therefor on the same basis as provided in
Section 4(b) hereof with respect to each new client account which becomes a
client account as a direct result of Executive's efforts, as determined by
the Company in the exercise of its reasonable discretion, from the date of
Executive's acceptance of the Company's offer to the date of the
termination of the Executive's retention as a soliciting agent (the "Period
of Soliciting Activities"). The Period of Soliciting Activities shall end
upon ninety (90) days written notice by either party to the other. The
Agreement between the Executive and the Company governing Executive's
activities during the Period of Soliciting Activities, shall, in addition
to the compensation and termination provisions set forth herein, include
the terms and conditions of the Company's standard form of Solicitors
Agreement annexed hereto as Exhibit A and such other terms and conditions
as the Executive and the Company shall agree.
7. Post-Termination Responsibilities.
(a) Records and Files: Upon termination of his employment for any reason,
whether during the period set forth in Section 2 hereof or thereafter, the
Executive shall immediately turn over to the Company all records and files
maintained by the Executive relating to the business of the Company or its
affiliates and to their
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clients, including, but not limited to, originals and all copies of all
correspondence, soliciting materials, contracts, proposals, analyses,
performance data and other written or computer software, data bases, programs
and disks.
(b) No Relationship with Clients or Prospective Clients:
(i) From and after the termination of the Executive's employment for
whatever reason, whether during the period set forth in Section 2 hereof or
thereafter, neither the Executive nor any entity in which he has an
interest, directly or indirectly, whether as an officer, director, partner,
stockholder, employee or otherwise (hereinafter referred to as a "related
entity") shall approach or solicit, directly or indirectly, any client or
prospective client of the Company or its affiliates to become a client of
the Executive or a related entity, and the Executive will not authorize or
approve the taking of such action by any related entity. Neither the
Executive nor any such related entity shall take any action for the
purposes of, or which would result in, the termination of any investment
management or related relationship between the Company and its affiliates
and any of their clients or the creation of such a relationship with the
Executive or a related entity, and the Executive will not authorize or
approve the taking of such action by any related entity. The restrictions
contained in this subsection 7(b)(i) shall continue in effect for a period
of two years after the termination of the Executive's employment. For
purposes of this Agreement, a "prospective client" is any person or entity
with whom the Company was in active negotiation with a view to such person
or entity becoming a client of the Company at any time within one year
preceding the
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termination of the Executive's employment. Upon the termination of
Executive's employment hereunder, the Company shall provide Executive with
a written list of its "prospective clients" as defined herein certifying
that it is time accurate and complete and Executive shall provide the
Company with a comparable similarly certified list reflecting all
"prospective clients" as defined herein with whom he has had contact.
(ii) From and after the termination of the Executive's employment with
the Company for whatever reason, whether during the period set forth in
Section 2 hereof or thereafter, the Executive will not accept or serve any
client or prospective client of the Company as a client or customer of the
Executive or of any related entity even though the Executive has not
solicited or approached such client or prospective client, and the
Executive will not authorize or approve the taking of such action by any
related entity. The restrictions contained in this Section 7(b)(ii) shall
continue in effect for a period of two years after termination of the
Executive's employment with the Company.
(iii) After the termination of the Executive's employment for whatever
reason, whether during the period set forth in Section 2 hereof or
thereafter, the Executive shall refer to the Company all inquiries from
prospective clients on the written lists provided pursuant to Section
7(b)(i) hereof with respect to the services of the Company or the
Executive's status with the Company. Any press release issued by the
Company or the Executive shall be subject to the Company's and the
Executive's
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approval which shall not be unreasonably withheld and shall form the basis
for any reference to Executive's status.
(iv) The Executive agrees that in addition to any other rights and
remedies available to the Company in the event the Executive breaches the
provisions of this Section 7(b), the Company shall be entitled to receive
from the Executive any and all revenues or other consideration received by
the Executive or a related entity from or in respect of any client, or
prospective client of the Company in connection with the provision by the
Executive or a related entity of investment management or related services.
(v) The Executive shall notify in writing, and shall furnish a copy of
such notice to the Company, any related entity, immediately upon his
association therewith, of the restrictions contained in this Section 7.
(vi) The obligations set forth in Section 7(b) hereof shall cease upon
the expiration of the restriction periods contained in subsection (b) of
this Section 7.
(c) Related Entity: Notwithstanding the foregoing, an entity will not
constitute a related entity pursuant to this Section 7 solely by virtue of the
Executive having an interest in such entity as a stockholder if the Executive's
ownership of shares of any class of securities (or options, warrants or rights
to acquire such securities, or any securities convertible into such securities)
of such entity represents (together with any securities which would be acquired
upon the exercise of any such options, warrants or rights or upon the conversion
of any other security convertible into such
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securities) 2% or less of the outstanding shares of any such class of securities
of an entity whose securities are traded on a national securities exchange or in
the over-the-counter market.
(d) Non-Solicitation, Non-Hiring of Employees: The Executive agrees that
for two years from and after the termination of his employment, whether during
the period set forth in Section 2 hereof or thereafter, neither he nor any
related entity shall induce any employee of the Company or its affiliates to
terminate his employment with the Company and shall not hire any employee of the
Company or its affiliates even though not solicited by him or any such related
entity.
(e) Family and Related Accounts: Notwithstanding the foregoing, an account
shall not be considered the account of a client or prospective client as defined
herein, and Executive's activities shall not be proscribed as provided herein,
if the client or prospective client is a "Member of the Immediate Family" of the
Executive. For the purposes hereof a "Member of the Immediate Family" shall mean
with respect to the Executive, his spouse, (or former spouse), parent, or child,
each spouse of any such person, each child of any of the aforementioned persons,
each trust or comparable entity created solely for the benefit of one or more of
the aforementioned persons and each custodian or guardian of any property of one
or more of the aforementioned persons in his capacity as such custodian or
guardian.
8. Enforcement. The Executive recognizes that his agreement to the terms
and conditions of Sections 7, 8 and 9 of this Agreement represents a material
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inducement to the Company to continue the Executive's employment. The Executive
acknowledges that irreparable injury may result to the Company and that the
Company will have no adequate remedy at law in the event that the Executive
breaches any of the provisions of Section 7 hereof. Accordingly, the Executive
agrees that in the event of a breach by the Executive of any of the provisions
of Section 7, the Company shall, in addition to all other rights and remedies,
be entitled to injunctive relief with respect to such breach and/or to a decree
for specific performance of the terms of such Section, in each instance without
the necessity of showing any irreparable injury or special damages.
9. Successors.
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and delivers
the Agreement provided for in this Section 9 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
(b) In the event Executive's employment under this Agreement shall
terminate for any reason while any amounts have been earned but not paid as of
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the applicable Date of Termination as defined herein or are otherwise due the
Executive under the terms of Section 6 hereof or by reference thereto, then the
right to receive such amount shall survive and be enforceable after the
termination of Executive's employment hereunder by the Executive, his
successors, assigns, executors, administrators, heirs, legatees, devisees or
legal representatives.
10. Chance In Control. A "Change in Control" shall mean that either of the
following events shall have occurred: (i) a person as defined in Sections 13(d)
or 14(d) of the Securities Exchange Act of 1934 other than Xxxxxx X. Xxxxxxx,
Xxxxx X. Xxxxxxxxx or Xxxxxxx X. Xxxxxx or members of their respective immediate
families, their respective estates, heirs or legatees, is or becomes the
"beneficial owner' (as defined in Rule I 3d-3 of the Exchange Act) of 25% or
more of the combined voting power of the then outstanding securities of Employer
or any successor thereto, or (ii) one half of the directors of the Company
currently in office shall cease to be a majority of directors of Employer other
than as a result of death, disability, termination with or without cause or
resignation of Xxxxxx X. Xxxxxxx or Xxxxx X. Xxxxxxxxx, from the Company or its
Board of Directors. In the event of a Change in Control during the term of
Executive's employment under this Agreement, Executive agrees that,
notwithstanding anything to the contrary contained in this Agreement, Executive
shall be entitled to receive continuing payments if, and only if, Employee
remains in the employ of the Company, or its successor resulting from such
Change in Control, for a period of two years from the date thereof, unless
Employee is terminated without cause by the Company or such successor during
such period. Upon the earlier of such termination without cause or
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Executive's resignation at or after the second anniversary of the Change in
Control, the continuing payments shall commence to be paid to Executive pursuant
to the terms hereof.
11. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when mailed by United States registered or
certified mail, return receipt requested, postage prepaid, transmitted by
facsimile transmission or delivered by messenger addressed as follows:
If to the Executive:
Xxxxx X. Xxxxx
00 Xxxxxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
If to the Company:
Atalanta/Sosnoff Capital Corporation (Delaware)
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as any such person may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
12. Amendment and Waiver. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and duly authorized officer of the Company.
No
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waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
13. Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without reference to conflicts of laws.
14. Severability: Survivability. It is the intent of the parties hereto
that in case any one or more of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. The provisions of Sections 6(g), 6(h), 7, 8 and 9(b) of this Agreement
shall survive the expiration or termination of Executive's employment hereunder,
whether during the period set forth in Section 2 of this Agreement or
thereafter, and the termination of this Agreement.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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16. Only Employment Agreement. From and after the Effective Date this
Agreement shall supersede any and all prior employment agreements between the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
ATALANTA/SOSNOFF CAPITAL CORPORATION
(DELAWARE)
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Xxxxxx X. Xxxxxxx
Chairman of the Board
ATALANTA/SOSNOFF MANAGEMENT
CORPORATION
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Xxxxxx X. Xxxxxxx
Chairman of the Board
/s/ XXXXX X. XXXXX
------------------------------
Xxxxx X. Xxxxx
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XXXXX X. XXXXX
INSTITUTIONAL ACCOUNTS
SCHEDULE A PAYOUT SCHEDULES
QUARTERLY FEES QUARTERLY FEES
TOTAL BILLING PERIOD
ACCOUNT EFFECTIVE THROUGH
NAME DATE 12-31-96 12-32-96 3-31-97 6-30-97 9-30-97
------------------------------------------------------------------------------------------------------------------------
GUAM 4-04-86 1.299.212 76.524 81.864 83.746 00.000
XX. XXXXXXX XXXX 0-00-00 400.032 43.102 45.376 46.428 51.681
MPLT MEM PARK 4-20-88 63.915 3.469 N/A N/A N/A
MNS 9-07-88 405.250 42.916 44.562 45.088 50.492
HONOLULU MEDICAL RET 4-01-90 126.388 11.203 11.501 11.337 12.587
HONOLULU MEDICAL 401(K) 4-01-90 67.802 6.901 7.237 7.327 8.236
NO MARIANA ISL RET 4-01-90 1.056.282 102.518 104.246 105.022 113.870
MPLT GENERAL FUND 6-01-90 389.309 25.102 N/A N/A N/A
HAWAIIAN ELECTRIC FND. 1-01-91 53.291 4.383 4.543 5.304 5.635
MNS AGENCY 5-15-91 293.079 41.789 43.267 42.860 46.084
SIU 7-01-91 559.884 50.113 37.670 22.115 25.917
HAWAII TRUCKERS 7-01-91 463.030 46.815 47.373 51.541 53.284
PRIOR SERVICES 8-01-91 83.382 5.776 5.647 5.434 5.535
REPUBLIC OF PALAU SOC SEC 10-01-91 265.388 25.068 25.570 25.588 27.375
SAIPAN TRUST FUND 1-01-92 8.013 1.306 N/A N/A N/A
HOTEL UNION 11-01-91 830.265 82.189 84.251 84.945 90.864
UNITY HOUSE 12-02-91 347.969 41.665 44.306 7.585 8.515
BOILERMAKERS (CANADA) 5-11-92 653.189 66.145 68.704 70.081 77.528
MEDICAL FOUNDATION 4-01-92 80.431 7.146 7.146 7.046 2.784
REPUBLIC OF PALAU CVI SVC 11-16-92 285.215 34.555 35.542 35.879 38.417
HAWAIIAN ELECTRIC HI YIELD 7-01-92 407.713 42.098 00.000 X/X X/X
XXXXXXXX XXXXX FON. 4-22-93 800.284 68.011 10.122 71.348 78.448
ISEMOT0 CORP. ACCT 8-31-93 32.785 2.162 2.264 2.324 2.667
ISEMOTO CONTRACTING DBPP 8-31-93 32.079 3.109 3.387 3.333 3.848
XXXXXXX XXX 8-31-92 3.628 409 445 488 543
XXXXXXXXX XXX 8-31-92 3.628 409 445 488 543
XXXXXX X. XXXXXX 1-01-93 25.444 1.843 2.003 2.200 2.443
FSM F/B/O YAP STATE 12/17/93 129.201 45.138 46.264 46.697 50.523
FSM COMPACT FUND 12/17/93 138.255 15.653 15.971 16.181 17.915
EAGLE DISTRIBUTORS 1-13-94 31.295 3.573 2.690 N/A N/A
XXXXX X. XXXXXX XXX 2-01-94 13.298 1.610 1.737 1.924 2.130
XXX X. XXXXXXX 3-01-94 18.025 2,177 2.348 2.602 2.880
ADVANCED MICRO DEVICES 4-01-94 336.216 51,806 53.600 44.264 N/A
XXXXXX XXXXX XXX 4-30-94 9.085 1.091 1.145 1.269 1.338
XXXX XXXX MEDICAL 5-24-94 427.903 74.764 76.258 76.916 81.181
QUEENS HEALTH SYSTEMS 10-10-94 301.257 41.409 19.353 N/A N/A
XXXXXXX X. XXXXXX XXX 11-30-94 9.589 1.573 1.697 1.881 2.361
QUEENS HEALTH SYSTEMS 01-09-95 171.834 26.335 34.325 35.089 39.586
PALAU TRUST FUND 02-01-95 153.936 26.389 27.384 27.498 32.235
HEI VEBA HI YIELD 09-07-95 5.305 2.154 1.755 N/A N/A
HEI OPEB EQUITY 09-07-95 1.416 289 300 368 483
HEI VEBA EQUITY 09-07-95 13.198 5.069 5.144 6.311 6,885
LINFIELD COLLEGE 0 N/A 44.356 46.717 50.635
XXXXXX XXX 0 N/A 3.439 3.519 3.745
ARCHDIOCESE- PORTLAND 0 N/A 22.048 22.501 24.339
XXXXXX FAMILY TRUST 01-01-96 1.632 659 N/A N/A N/A
MNS -ABC STORES 01-01-96 264 106 115 127 000
XXXXXX X. XXXXXXXX XXX 00-00-00 3.341 1.594 1.719 1.905 2.108
XXXXXX X. XXXXXXXXX XXX 01-01-96 1.312 531 573 634 702
XXXXXXX X. XXXXXXXXXX XXX 01-01-96 6.394 1.877 2.959 3.278 3.628
XXXXXXX X. XXXXX XXX 02-01-96 2.045 950 1.025 1.136 1.25X
XXXXX X. XXXXXX XXX 02-01-96 3.559 1.105 N/A N/A N/A
-------------------------------------------------------------------------
TOTAL 10.815.247 1.142.578 1.177.907 1.078,324 1.128.06X
=========================================================================
XXXXX X. XXXXX
INSTITUTIONAL ACCOUNTS
PAYOUT SCHEDULES
QUARTERLY SHARE @ 5% QUARTERLY SHARE @ 5%
TOTAL COLLECTION PERIOD
ACCOUNT EFFECTIVE THROUGH
NAME DATE 12-31-96 12-32-96 3-31-97 6-30-97 9-30-97
------------------------------------------------------------------------------------------------------------------------
GUAM (1) 4-04-86 35.058 7.652 8.186 8.375 0.000
XX. XXXXXXX XXXX 0-00-00 8.282 2.155 2.269 2.321 2.584
MPLT MEM PARK (1) 4-20-88 888 347 0 0 0
MNS 9-07-88 7.865 2.146 2.228 2.254 2.525
HONOLULU MEDICAL RET 4-01-90 2.278 560 575 567 629
HONOLULU MEDICAL 4OlCK) 4-01-90 1.327 345 362 366 412
NO MARIANA ISL RET (1) 4-01-90 39.797 10.252 10.425 10.502 11.387
MPLT GENERAL FUND U) 6-01-90 6.432 2.510 0 0 0
HAWAIIAN ELECTRIC FND.C2) 1-01-91 3.260 877 909 1,061 1.127
MNS AGENCY 5-15-91 7.141 2.089 2.163 2.143 2.304
SIU 7-01-91 9.495 2.506 1.884 1.106 1.296
HAWAII TRUCKERS 7-01-91 8.822 2.341 2.369 2.577 2.664
PRIOR SERVICES Cl) 8-01-91 2.630 578 565 543 554
REPUBLIC OF PALAU SOC (1) 10-01-91 9.877 2.507 2.557 2.559 2.738
SAIPANN TRUST FUND (1) 1-01-92 335 131 0 0 0
HOTEL UNION 11-01-91 16.295 4.109 4.213 4.247 4.543
UNITY HOUSE 12-02-91 6.842 3.083 2.215 379 426
BOILERMAKERS(CANADA) 5-11-92 12.762 3.307 3.435 3.504 3.876
MEDICAL FOUNDATION 4-01-92 1.438 357 357 352 . 139
REPUBLIC OF PALAU CVL (1) 11-16-92 12.566 3.456 3.554 3.588 3.842
HAWAIIAN ELECTRIC HI YIELD 7-01-92 8.071 2.105 1.712 0 0
XXXXXXXX XXXXX FDN. 4-22-93 14.285 3.401 3.506 3.567 3.922
ISEMOTO CORP. ACCT 8-31-93 414 108 113 116 133
ISEMOTO CONTRACTING DBPP 8-31-93 623 155 169 167 192
XXXXXXX XXX 0-00-00 0 XXX XXX 24 27
XXXXXXXXX XXX 0-00-00 0 XXX XXX 24 27
XXXXXX X. XXXXXX 1-01-93 344 92 100 110 122
FSM F/B/O YAP STATE (1) 12/17/93 6.414 4.514 4.626 4.670 5.052
FSM COMPACT FUND (1) 12/17/93 6.114 1.565 1.597 1.618 1.792
EAGLE DISTRIBUTORS 1-13-94 673 179 135 0 0
XXXXX X. XXXXXX XXX 2-01-94 297 161 174 192 213
XXX X. XXXXXXX 3-01-94 805 218 235 260 288
ADVANCED MICRO DEVICES 4-01-94 19.180 2.590 2.680 2.213 0
XXXXXX XXXXX XXX 4-30-94 426 109 115 127 134
XXXX XXXX MEDICAL 5-24-94 12.819 3.738 3.813 3.846 4.O59
QUEENS HEALTH SYSTEMS 10-10-94 8.056 2.070 968 0 0
XXXXXXX X. XXXXXX XXX 11-30-94 581 157 170 188 208
QUEENS HEALTH SYSTEMS 01-09-95 7.737 1.317 1.716 1.754 1.979
PALAU TRUST FUND (1) 02-01-95 10.012 2.639 5.477 5.500 6.447
HEI VEBA HI YIELD 09-07-95 0 AGM AGM N/A N/A
HEI OPEB EQUITY 09-07-95 0 AGM AGM N/A N/A
HEI VEBA EQUITY 09-07-95 0 AGM AGM N/A N/A
LINFIELD COLLEGE 0 N/A 4.436 4.672 5.064
XXXXXX XXX 0 N/A 344 352 375
ARCHDIOCESE-PORTLAND 0 N/A 2.205 2.250 2.434
XXXXXX FAMILY TRUST 01-01-96 164 66 N/A N/A N/A
MNS -ABC STORES 01-01-96 0 AGM AGM AGM AGM
XXXXXX X. XXXXXXXX XXX 01-01-96 335 159 172 191 211
XXXXXX X. XXXXXXXXX XXX 01-01-96 0 AGM AGM AGM AGM
XXXXXXX X. XXXXXXXXXX XXX 01-01-96 640 188 296 328 363
XXXXXXX X. XXXXX XXX 02-01~96 205 95 103 114 26
XXXXX X. XXXXXX XXX 02-01-96 357 111 N/A N/A N/A
---------------------------------------------------------------------
TOTAL 291.942 76.045 83.128 78.727 33.912
=====================================================================
ATALANTA/ SOSNOFF MANAGEMENT PAYOUT
IMA FEES
XX # XXXXX PERIOD 503
AND VALUE ENDED
NAME A/C # CODE 06-30-97 09-30-97 STAUB
-------------------------------------------------------------------------------------------------------------------
Aloha Xxxxxxx-Xxx Xxxxxx 00000 XXX 820.431 1.880.OO 188.00
Xxx Xxxxx Xxxxxxxxxx 00000 XXX 1.315.279 2.870.00 143.50
Xxxxxx X. X. Xxxxx. M.D. 14690 JDS 1.317.433 2.853.00 142.65
Xxxxxxxxxx Xxxxxxxxxx 00000 XXX 1.350.401 2.957.0Q 147.85
Vinc & Xxxx XxXxxxxxxx 00000 XXX 2.678725 6.696.00 1.339.20
Vinc & Xxxx XxXxxxxxxx #0 00000 XXX 3.268,684 8.171.00 l.634.20
Finance Factors 20511 JDS 4.339.250 9,656.00 482.80
Xxxxxx Xxxxxxx Xxxxxxxxxx 00000 XXX 1.219.851 2,735.00 136.75
Hawaii Residency Programs 26100 JDS 3.045.110 6,925.00 346.25
Xxxxxxxx X. X. Xxx Xxxxx 00000 XXX 1.252.934 2,887.00 AGM
King & Xxxx, Inc. 30385 JDS 1.509.425 3.389.00 169.45
Xxxxxx Xxxxxx Xxx Xx 00000 XXX 3.236.755 6.189.00 1,237.80
X. Xxxxxx & Xxxx 00000 XXX 1.286.383 2.407.00 120.35
Xxxxxx Xxxxxxxxx Xxxxx 00000 XXX 1.915.197 3.577.00 178.85
Kosasa Foundation 30410 JDS 2.399.653 4,636.00 231.80
Xxxx Xxxxxxxxxx Xx. 00000 XXX 1.296.276 2,996.00 149.80
Xxxxxxx X. Xxxxx 34375 XXX 2.754.746 6.886.00 1,377.20
College of Micronesia 34670 JDS 1.310.851 2.896.00 579.20
Xxxxx Xxxxxx Xxxxx 00000 XXX 611.594 1.528.00 305.60
Xxxxx Xxxxxx Xxxxx 00000 XXX 627.930 1.569.00 313.80
Xxxxxx Xxxxxx Xxxxx 00000 XXX 944.191 2.360.00 472.00
Xxxxxxx Xxxxxxxxxx Xxx 00000 XXX 4.695.342 14.582.O0 1,458.20
Xxxxxxx Xxxxxxxxxxxxx 00000 XXX 585.770 1.270.00 XXX
Xxxx Xxxxx 00000 XXX 1.420.512 3.551.00 710.20
Rehab. Hosp. of Pac. 44375 JDS 3.430.152 7.410.00 1,482.00
Xxxxxxxx.X'Xxxxxx 000(X) 00000 XXX 158.306 395.00 AGM
Xxxxxxxx.0'Connor 401(K) 45348 JDS 848.154 2.120.00 AGM
Xxxxxxxx.X'Xxxxxx 000(X) 00000 XXX 451.061 1,127.00 225.40
Xxxxxxx Xxxxxx 401(K) 45353 JDS 732.577 1,831.00 366.20
Xxxx Xxxxxxx 000(X) 00000 XXX 789.641 1,974.00 394.80
Xxxxxx Xxxxxxxx 000(X) 00000 XXX 1.148.994 2.872.00 574.40
A & J Xxxxxxxx 00000 XXX 723.895 1.809.00 361.80
Wong Sugihara psp 47600 JDS 826.762 1.803.00 360.60
ATALANTA/ SOSNOFF MANAGEMENT PAYOUT
IMA FEES
XX # XXXXX PERIOD 503
AND VALUE ENDED
NAME A/C # CODE 06-30-97 09-30-97 STAUB
-------------------------------------------------------------------------------------------------------------------
X & X Xxxxxxx 00000 XXX 3.833.261 9.583.00 1.916.60
Xxxxx Xxxxxxxx 00000 XXX 373.102 821.00 AGH
Gulab Waturnull 54305 JDS 451.201 996.00 RJK
Xxxxx Xxxxxx Xx 00000 JDS 4.411.771 10.276.00 2.055.20
National Mortgage & Finance 65425 JDS 4.760.484 8.925.00 000.00
Xxxx X. Xxxxxx 00000 XXX 1.244.589 1.096.00 54.80
Xxxxx X. Xxxxxxx Xxx Xx 00000 XXX 1.277.690 1.120.00 56.00
S & C Xxxxxxx Family 66390 JDS 1.246.802 1.099.00 54.95
Xxxxxxx X. Xxxxxxx 00000 XXX 1.281.837 1.120.00 56.00
Assoc Ret Empls P R 66590 JDS 314.819 359.00 17.95
Xxxxxx Xxxxxxxxx XXX 00000 XXX 792.138 880.00 44.00
Sicash Builders PSP 66755 JDS 1.205.00 60.25
Xxxxx & Xxxxx Xxxxxxxx XXX 00000 XXX 491.569 538.00 26.90
Xxxxx Xxxxx & Xxxxx. 00000 XXX 402.898 437.00 00.00
X & X Xxxxxxx 00000 XXX 854.206 2.135.00 427.00
X.X. Xxxxxx-XXX 00000 XXX 496.834 1.242.00 248.40
Xxxxxxxx X. Xxxxx 00000 XXX 1.776.013 4.440.00 888.00
Xxxxxxx X. Xxxxx 95125 JDS 2.908,135 7.270.00 1.454.00
Xxxxx X. Xxxx Xxx Xx 00000 XXX 96 304.723 334.00 50.10
Pioneer Oil Company. Inc. 66580 JDS 96 1.159.888 1.273.00 190.95
----------------------------------------------
TOTAL 82.694.285 181.956.00 23.699.85
====================================
QUARTERLY DRAW / PAYMENTS 0.00
CURRENT DUE TO (DUE FROM) 23.699.85
PREVIOUS BALANCE 0.00
---------
NET AMOUNT DUE (RECOVERABLE) 23.699.85
=========
EXHIBIT A
[Letterhead of Adviser]
_________, 199_
Xx. Xxxxx Xxxxx
00 Xxxxxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Re: Client Solicitation Activities on behalf of
Atalanta/Sosnoff Capital Corporation (Delaware)
and Atalanta/Sosnoff Management Corporation
(collectively, "Atalanta")
Dear Xx. Xxxxx:
Atalanta (the "Advisor'), as an investment advisor registered under the
Federal Investment Advisors Act of 1940 (the "Act"), is precluded from paying
you a cash fee directly or indirectly in connection with your solicitation
activities on its behalf except under the limited conditions set forth in Rule
206(4)-3 (the "Rule") of the Act.
The purpose of this letter is to confirm our understanding with respect to
the terms and conditions upon which you shall serve as an independent contractor
to the Advisor and effect compliance with the Rule. (A copy of the Rule is
attached hereto as Exhibit A.)
This letter shall supersede any oral or prior written understandings we may
have or have had with respect to the subject matter. If the terms and conditions
set forth below are satisfactory to you, please sign one copy of this letter and
return it to the Advisor, at which time we shall have a binding agreement.
Our agreement is as follows:
1. As an independent contractor and not as an employee, you have expressed
an interest in soliciting as clients for the Advisor those individuals and
entities which you in your best judgment believe to be suitable. The Advisor
will have no responsibility to accept any proposed client, and you will have no
authority to accept any client on behalf of the Advisor.
1
2. The services to be performed hereunder shall be performed by you or by
such other person as the Advisor shall expressly approve.
3. With respect to any client, which the Advisor has concluded in the
exercise of its reasonable discretion, has become a client as a direct result of
your solicitation efforts (a "Solicited Client"), you will, to the extent
reasonably requested by the Advisor, provide continuing service to assist the
Solicited Client in maintaining the most effective possible relationship with
the Advisor. These services may include regular telephone and in person contact
for portfolio reviews and such other services as will assist the Solicited
Client in its understanding of the Advisors services.
4. For your services hereunder, with respect to any Solicited Client, you
will receive, for so long as this Agreement remains in effect, compensation as
described on Exhibit B-I annexed hereto, you will be reimbursed for your
reasonable expenses incurred by you in the solicitation or maintenance of the
accounts of Solicited Clients.
5. You undertake to perform your duties hereunder in a manner consistent
with the instructions of the Advisor and the provisions of the Act and the rules
thereunder, including the Rule. You confirm that you have read and understand
the Rule and will abide by it in your solicitation activities. In accordance
with the Rule, you will, at the time of the solicitation activities referred to
in paragraph I hereof, provide the Solicited Client with a current copy of the
Advisors written disclosure statement, as provided to you by the Advisor, and of
a separate written disclosure statement substantially in the form attached
hereto as Exhibit C-I. You will obtain from the client a written acknowledgment
of the receipt of such disclosure statements, and provide a copy of that
acknowledgment to the Advisor.
6. In performing services hereunder, you will make only such
representations, and use only such materials, regarding the Advisor as have been
approved or authorized by the Advisor.
7. This Agreement shall be terminable at any time by you or by the Advisor,
with or without cause, effective ninety (90) days after written notice of
termination and otherwise shall terminate upon your death or the death of such
other person as shall been approved by the Advisor as provided in paragraph 2
above. Your share of compensation in respect of advisory fees of Solicited
Clients shall continue until the end of the calendar year of the termination of
this Agreement. Upon such termination, each party will keep confidential all
proprietary information about the other obtained during the term of this
Agreement, including customer lists and sales material, and each shall upon
request return to the other any files, customer lists, sales material or other
material relating to the business of the other in its possession. Nothing in
this paragraph 7 shall require Advisor to cease to serve as Advisor to a
Solicited Client upon termination of the Agreement.
2
8. The Rule requires that the solicitor not be a person (a) subject to an
order of the Securities and Exchange Commission ("SEC") as referenced in the
Rule, (b) convicted within the previous ten years of certain felonies or
misdemeanors referred in the Rule, (c) found by the SEC to have engaged in
conduct referenced in the Rule, or (d) subject to an order, judgment or decree
referenced in the Rule. You hereby confirm to us that you have never been the
subject of any such order, so convicted or the subject of any such finding or
order, judgment or decree.
9. This Agreement will be governed by, and interpreted in accordance with,
the laws of the State of New York.
Atalanta/Sosnoff Capital Corporation (Delaware)
Atalanta/Sosnoff Management Corporation
By:
----------------------------------------------
Accepted and agreed to,
including attached Exhibits:
/s/ XXXXX X. XXXXX
--------------------------------
Xxxxx X. Xxxxx
3
EXHIBIT A-I
Fraudulent Practices -- ss.206 44,177
[P 56,383A] Cash Payments for Client Solicitations
Reg. ss. 275.206(4)-3. (a) It shall be unlawful for any investment adviser
required to be registered pursuant to Section 203 of the Act to pay a cash fee,
directly or indirectly, to a solicitor with respect to solicitation activities
unless:
(l)(i) the investment adviser is registered under the Act;
(ii) the solicitor is not a person (A) subject to a Commission order issued
under Section 203(0 of the Act, or (B) convicted within the previous ten years
of any felony or misdemeanor involving conduct described in Section
203(e)(2)(A)-(D) of the Act, or (C) who has been found by the Commission to have
engaged, or has been convicted of engaging, in any of the conduct specified in
paragraphs (1), (5) or (6) of Section 203(e) of the Act, or (D) is subject to an
order, judgment or decree described in Section 203(e)(3) of the Act; and
(iii) such cash fee is paid pursuant to a written agreement to which the
adviser is a party; and
NOTE: The investment adviser shall retain a copy of each written agreement
required by this paragraph as part of the records required to be kept under ss.
275.204-2(a)(10) of this chapter.
(2) such cash fee is paid to a solicitor;
(i) with respect to solicitation activities for the provision of impersonal
advisory services only; or
(ii) who is (A) a partner, officer, director or employee of such investment
adviser or (B) a partner, officer, director or employee of a person which
controls, is controlled by, or is under common control with such investment
adviser provided that the status of such solicitor as a partner, officer, direct
or employee of such investment adviser or other person, and any affiliation
between the investment adviser and such other person, is disclosed to the client
at the time of the solicitation or referral; or
(iii) other than a solicitor specified in paragraph (a)(2)(i) or (ii) above
if all of the following conditions are met;
(A) The written agreement required by paragraph (a)(l)(iii) of this
section: (1) describes the solicitation activities to be engaged in by the
solicitor on behalf of the investment adviser and the compensation to be
received therefor; (2) contains an undertaking by the solicitor to perform his
duties under the agreement in a manner consistent with the instructions of the
investment adviser and the provisions of the Act and the rules thereunder; (3)
requires that the solicitor, at the time of any solicitation activities for
which compensation is paid or to be paid by the investment adviser, provide the
client with a current copy of the investment advisers written disclosure
statement required by ss. 275.204-3 of this chapter ("brochure rule') and a
separate written disclosure document described in paragraph (b) of this rule.
(B) The investment adviser receives from the client, prior to, or at the
time of, entering into any written or oral investment advisory contract with
such client, a signed and dated acknowledgment of receipt of the investment
adviser's written disclosure statement and the solicitor's written disclosure
document.
NOTE: The investment adviser shall retain a copy of each such
acknowledgment and solicitor disclosure document as part of the records required
to be kept under ss. 275.204-2(a)(15) of this chapter.
(C) The investment adviser makes a bona tide effort to ascertain whether
the solicitor has complied with the agreement, and has a reasonable basis for
believing that the solicitor has so complied.
(b) The separate written disclosure document required to be furnished by
the solicitor to the client pursuant to this section shall contain the following
information:
Federal Securities Law Reports Reg. ss. 275.206(4)-3 P.56,383A
44,178 Investment Advisers Act
(1) The name of the solicitor:
(2) The name of the investment adviser'.
(3) The nature of the relationship, including any affiliation, between the
solicitor and the investment adviser,
(4) A statement that the solicitor will be compensated for his solicitation
services by the investment adviser;
(5) The terms of such compensation arrangement, including a description of
the compensation paid or to be paid to the solicitor; and
(6) The amount, if any, for the cost of obtaining his account the client
will be charged in addition to the advisory fee, and the differential, if any,
among clients with respect to the amount or level of advisory fees charged by
the investment adviser if such differential is attributable to the existence of
any arrangement pursuant to which the investment adviser has agreed to
compensate the solicitor for soliciting clients for, or referring clients to,
the investment adviser.
(c) Nothing in this section shall be deemed to relieve any person of any
fiduciary or other obligation to which such person may be subject under any law.
(d) For purposes of this section,
(1) "Solicitor" means any person who, directly or indirectly, solicits any
client for, or refers any client to, an investment adviser.
(2) "Client" includes any prospective client.
(3) "Impersonal advisory services" means investment advisory services
provided solely by means of (i) written materials or oral statements which do
not purport to meet the objectives or needs of the specific client, (ii)
statistical information containing no expressions of opinions as to the
investment merits of particular securities, or (iii) any combination of the
foregoing services.
[Adopted in Release No. IA-688 (182,128), effective September 30, 1979,44
FR. 42130; Release No. IC-17085 (P.84,434), effective September 25, 1989. 54
F.R. 32048; and Release No. IA-1633 (P.85,940), effective July 8, 1997, 62 F.R.
28112.]
EXHIBIT B-I
Compensation - [name]
Percentage of advisory fees commencing on the later of establishment of
Solicited Client relationship or receipt of written Solicited Client
acknowledgment of your compensation arrangement with [___________], in
accordance with Section 4(b) of a certain Executive Employment Agreement by and
between Atalanta and Xxxxx X. Xxxxx dated December __, 1997.
EXHIBIT C-I
[Addressee shall be the person
or body which makes investment
manager selection or delegate]
Dear ________:
I have previously caused to be furnished to you the Form ADV, Part II for
Atalanta (the "Advisor"). The information in the form required disclosure prior
to your establishing a manager-client relationship with the Advisor.
As I previously advised you, for so long as you employ the Advisor as your
investment manager and my agreement with the Advisor remains in effect, the
Advisor will pay me as compensation on an ongoing basis an annual referral fee
equal to ____ percent (_____%) of its advisory fees which fees will be deducted
directly from your account. This compensation will cover all expenses involved
in assisting you in maintaining the most effective possible relationship with
the Advisor. These services may include regular telephone and in person contact
for portfolio reviews and such services as will assist you in your understanding
of the Advisor's services.
The Advisor charges varying fees for its advisory services. The fee being
paid by you for the Advisor's services has not been increased as result of
amounts being paid by the Advisor to me.
Except as described in this disclosure statement, the Advisor and 1 are not
otherwise affiliated and each is an independent contractor.
Sincerely,
I hereby acknowledge receipt
of the above-referenced Form ADV
and of this letter:
________________________________
[print name and title below line]
