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Levin Employment Agreement
EMPLOYMENT AGREEMENT
This Agreement is made and entered into by and among Baker, Fentress &
Company ("BKF"), a Delaware corporation, JALC Acquisition Corp. ("Merger
Subsidiary"), a Delaware corporation, for itself and as the Surviving
Corporation (as hereinafter defined), and John A. Levin ("Levin") effective as
of the Effective Date, as defined in Section 2 herein. BKF and Merger Subsidiary
are each referred to herein as a "Company" and collectively as the "Companies."
WHEREAS, on the Effective Date and pursuant to an Amended and Restated
Agreement and Plan of Merger by and among BKF, Merger Subsidiary, John A. Levin
& Co., Inc. ("LEVCO") and all of the holders of the outstanding capital stock of
LEVCO (the "Merger Agreement"), LEVCO will be merged with and into Merger
Subsidiary with Merger Subsidiary as the surviving corporation (the "Surviving
Corporation"), and all of the outstanding shares of common stock of LEVCO will
be converted into shares of common stock of BKF;
WHEREAS, on the Effective Date, the Surviving Corporation shall succeed to
all of the rights and obligations of Merger Subsidiary as set forth hereunder;
WHEREAS, Levin currently serves as the President of LEVCO and is a
shareholder of LEVCO;
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Companies wish to employ Levin and Levin wishes to accept such employment;
and
NOW, THEREFORE, in consideration of the foregoing premises, the value to
be received by Levin under the Merger Agreement, the employment of Levin by the
Companies, the access to the Companies' customer base and Confidential
Information (as hereinafter defined) and the mutual promises, terms, provisions
and conditions set forth in this Agreement, the parties hereby agree:
1. Employment. Subject to the terms and conditions set forth in this
Agreement, the Companies hereby offer and Levin hereby accepts the employment.
2. Term. Subject to earlier termination as provided below, Levin shall be
employed by the Companies hereunder for the period (the "Term") commencing on
the Effective Date and ending on the fifth anniversary of the Effective Date.
"Effective Date" as used herein is to be the same date as the Closing Date set
forth in the Merger Agreement.
3. Capacity; Performance.
a. During the Term, Levin shall serve as the Chief Executive Officer and
President of BKF and as the President of Merger Subsidiary and shall have such
responsibilities, duties and authority as are generally associated with the
positions of Chief Executive Officer and President (including, without
limitation, the authority to hire, discharge and fix the terms and conditions of
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Levin Employment Agreement
employment of all employees of the Companies and any of their respective
subsidiaries, subject, only in the case of officers, to the approval of the
Board of Directors of BKF (the "Board") (or any committee thereof, to the extent
provided under the Companies' respective by-laws) and as may be assigned from
time to time to Levin by the Board that are consistent with such
responsibilities, duties and authority and Levin's positions as Chief Executive
Officer and President. During the Term. Levin will, consistent with the
provisions of the foregoing sentence, also serve in such offices or positions
with subsidiaries of Merger Subsidiary as the Board may from time to time
determine, to the extent consistent with the responsibilities, duties and
authority of Levin's position as Chief Executive Officer and President of BKF.
Levin shall be based and shall perform his duties primarily at the principal
executive offices of Merger Subsidiary in the City of New York, except for
reasonable travel as the performance of his duties hereunder may require.
b. During the Term, Levin shall report directly to the Board.
c. During the Term, Levin shall devote his full business time and best
efforts, business judgment, skill and knowledge exclusively to the advancement
of the business and interests of the Companies and their affiliates and to the
discharge of his duties and responsibilities. Notwithstanding anything herein to
the contrary, nothing in this Agreement shall preclude Levin from (i) serving as
a director or member of a committee of any of the entities listed on Schedule
3(c) hereto, or of any non-profit organization (and, upon the prior written
consent of BKF, which consent shall not be unreasonably withheld, and in
accordance with the Codes of Ethics (as hereinafter defined), any for-profit
organization) not involving a conflict of interest with the Companies, (ii)
engaging in charitable and community activities and (iii) managing his own
investments and assets and those of any Family Members (as hereinafter defined)
(collectively, the "Family Assets"); provided that such activities are conducted
in accordance with each Company's respective code of ethics as adopted under the
Investment Company Act of 1940, as amended (the "1940 Act") and/or the
Investment Advisers Act of 1940 (the "Advisers Act") (collectively, the "Codes
of Ethics"). For purposes of this Agreement, "Family Members" means (i)
descendants or spouses of descendants of a great-grandfather of Levin or his
spouse (any such person being hereinafter referred to as a "Relative"), (ii)
trusts primarily for the benefit of Levin and/or any one or more Relatives of
Levin or (iii) partnerships, corporations or other forms or businesses or
investment entities or associations (any of the foregoing, an "Enterprise")
controlled by one or more of the persons or trusts described in clause (i) or
(ii) above, or with any other Enterprise so controlled.
d. The Companies shall furnish Levin with office space, secretarial,
communication, and services as shall be appropriate for Levin's position and
reasonably necessary for the performance of his duties under this Agreement.
e. The Companies agree to use reasonable efforts to cause Levin to be
elected and continued in office throughout the Term as a member of the Board of
Directors of each of the Companies and shall include him in the management slate
for election as a director of each of the Companies at every stockholders'
meeting of the Companies at which directors are elected, and
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Levin Employment Agreement
at every meeting of the Board of Directors of the Companies at which his term as
a director would otherwise expire.
4. Compensation and Benefits. As compensation for all services performed
by Levin under and during the Term:
a. Base Salaries During the Term, BKF shall pay Levin an initial base
salary of $50,000 per year and Merger Subsidiary shall pay Levin an initial base
salary of $775,000 per year. Such base salary to be paid by Merger Subsidiary
shall be, effective January 1, 1997 and on each anniversary of such date
thereafter during the Term, increased to reflect increases in the Urban Consumer
Price Index of the New York Metropolitan area as of the close of the preceding
year and may be increased from time to time by the Board or a committee thereof,
in its sole discretion. Such base salaries, as in effect at any given time, are
collectively referred to in this Agreement as the "Base Salaries" and shall be
payable in regular installments in accordance with the general payroll practices
of each of the Companies, as may be amended from time to time, for their
respective employees.
b. Bonus Payments.
(i) The Companies agree to use their reasonable best efforts to obtain
from the Securities and Exchange Commission an order in SEC Proceeding No.
812-9528 (the "Order") exempting Merger Subsidiary from Section 17(d) of the
1940 Act and Rule 17d-1 thereunder to permit Merger Subsidiary to adopt a
performance-based compensation plan in a form mutually acceptable to BKF and
Levin providing for the payment of non-discretionary cash bonuses to certain
officers and employees of Merger Subsidiary, including Levin, and intended to
qualify under Section 162(m)(4)(c) of the Internal Revenue Code of 1986, as
amended (the "Code") (the "Compensation Plan") and to cause the Compensation
Plan to be adopted by Merger Subsidiary, and BKF agrees to use its reasonable
best efforts to cause the Compensation Plan to be approved by the stockholders
of BKF. If, prior to Closing (as defined in the Merger Agreement), the Order is
obtained and the Compensation Plan is adopted by Merger Subsidiary and approved
by the stockholders of BKF, then, with respect to each full or partial calendar
year within the Term, Levin shall be eligible to receive an annual bonus payment
from Merger Subsidiary pursuant to the Compensation Plan (the "Compensation Plan
Bonus") in an amount determined in accordance with the terms of the Compensation
Plan. If the Order is not received or if the Compensation Plan is submitted to
the stockholders of BKF and is not approved by such stockholders, then neither
BKF nor Merger Subsidiary shall have any further obligation under this
subparagraph (i).
(ii) If, prior to Closing, the Order is not received, or the Compensation
Plan is not adopted by Merger Subsidiary or is not approved by the stockholders
of BKF, then:
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Levin Employment Agreement
(x) Levin shall be eligible to receive an annual discretionary bonus payment
from Merger Subsidiary ("Discretionary Bonus") in an amount to be
determined by the Compensation Committee of the Board, in light of Levin's
positions, responsibilities and entire compensation packages; and
(y) compensation amounts payable to Levin by Merger Subsidiary, including Base
Salary and Discretionary Bonus, if any, awarded to Levin, for any calendar
year of the Term, which, in combination with all compensation payable to
Levin by Merger Subsidiary and BKF for such calendar year of the Term, are
in excess of $1,000,000 (one million dollars) (hereinafter, the "Excess
Compensation") shall automatically be contributed to a deferred
compensation plan (the "Deferred Compensation Plan"). The Deferred
Compensation Plan shall be a nonqualified deferred compensation plan and a
"Rabbi Trust" administered by an independent trustee shall be established
to hold the Excess Compensation amounts contributed to the Deferred
Compensation Plan. Levin shall be entitled to payment of amounts
contributed to the Deferred Compensation Plan (together with the credited
interest therein) on the earlier of Levin's termination of employment with
the Companies for any reason or December 31, 2001. Any amounts held under
the Deferred Compensation Plan shall be credited with interest at the
Prime Rate set by the Federal Reserve Bank of New York, adjusted annually
on the anniversary of the commencement of Levin's employment by Merger
Subsidiary. If the payment of amounts under the Deferred Compensation Plan
becomes due in connection with a termination of Levin's employment with
the Companies, such payments shall be made in a lump sum within ten (10)
days following the date of such termination of employment. If the payment
of such amounts becomes due on December 31, 2001 (other than as a result
of Levin's termination of employment), payment of such amounts (together
with credited interest through the date of payment) shall be made to Levin
on each December 31, commencing with December 31, 2001, in such amounts
which, when aggregated with other compensation paid to Levin in such
calendar year by the Merger Subsidiary and BKF which is not
performance-based compensation (as defined in Section 162(m) of the Code)
does not exceed $1,000,000. Any unpaid amounts in respect of such calendar
year will be automatically deferred and similarly paid to Levin on the
next succeeding December 31, and paid in fUll in a lump sum no later than
the 10th day following Levin's termination of employment with the
Companies for any reason.
(z) The Companies will continue to use their reasonable best efforts to obtain
from the Securities and Exchange Commission an order exempting Merger
Subsidiary from Section 17(d) of the 1940 Act and Rule 17d-1 thereunder
to permit Merger Subsidiary to adopt a Compensation Plan and to cause the
Compensation Plan to be adopted by Merger Subsidiary, and BKF agrees to
use its reasonable best efforts to cause the Compensation Plan to be
approved by the stockholders of BKF. If, during the Term, (i) such an
order is obtained, (ii) Merger Subsidiary has adopted the Compensation
Plan and (iii) the stockholders of BKF have
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Levin Employment Agreement
approved the Compensation Plan, then, with respect to each full calendar
year within the Term and commencing after the occurrence of all of the
foregoing events (as set forth in subparagraphs (i)-(iii)), Levin shall be
eligible to receive an annual Compensation Plan Bonus.
c. Benefit Plans. Levin shall participate in all employee benefit plans,
programs and arrangements of the Companies now or hereinafter made available to
any senior executives of the Companies on a basis no less favorable than is made
available to any other such senior executives of the Companies, as such plans,
programs and arrangements may be in effect from time to time (including, without
limitation, each plan, program or arrangement providing for retirement benefits,
supplemental and excess retirement benefits, annual and long-term incentive
compensation (if any), stock options (if any), group life insurance, accident
and death insurance, medical and dental insurance, sick leave, disability
benefits and perquisites). In addition, Levin shall be entitled to at least four
(4) weeks vacation per calendar year and shall receive prompt reimbursement from
the Companies for all out-of-pocket expenses incurred by Levin in performing his
duties hereunder; provided that Levin submits documentation for the
reimbursement of such expenses.
5. Termination of Employment and Benefits. Notwithstanding the provisions
of Section 2, Levin's employment under this Agreement shall terminate prior to
the expiration of the Term under the following circumstances:
a. Death.
(i) In the event of Levin's death during the Term, Levin's
employment under this Agreement shall immediately and
automatically terminate, in which event the Companies shall
each pay to Levin's designated beneficiary or, if no
beneficiary has been designated by him, to his estate, (x) any
Base Salaries earned and unpaid as of his death, (y) any
Compensation Plan Bonus or Discretionary Bonus (each, a
"Bonus") as may previously have been awarded but which remains
unpaid, and (z) such additional Compensation Plan Bonus, if
any, as may be determined in accordance with the Compensation
Plan, if such Compensation Plan is in effect at the time of
Levin's death. In the event of death, Levin's designated
beneficiary, or, if no beneficiary has been designated by him,
his estate, shall be entitled to receive the pro rata portion
of either (i) the Compensation Plan Bonus for the year in
which Levin's death occurs, as determined under the
Compensation Plan or (ii) if no Compensation Plan is in
effect, an amount equal to the amount of the highest
Discretionary Bonus, if any, paid to Levin during the Term,
unless Levin's death occurs during the first year of the Term,
in which case the prorated amount of Discretionary Bonus shall
be determined at the sole discretion of the Compensation
Committee of the Board. The Companies shall otherwise have no
further obligation or liability under this Agreement in
respect to Levin.
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Levin Employment Agreement
(ii) In the event of Levin's death or disability during the Term,
the Companies agree to use reasonable efforts to cause the
person designated by the estate, or legal representative of
Levin, if any, (the "Representative") to be elected and
continued in such capacity throughout the Designation Period
(as hereinafter defined) as a member of the Board and
throughout the Designation Period shall use reasonable efforts
to include the Representative in the management slate for
election as a director of BKF at every stockholders' meeting
of BKF at which directors are elected and at every meeting of
the Board at which the Representative's term as a director
would otherwise expire. For purposes of the foregoing,
"Designation Period" shall mean the period between Levin's
death or disability and the earliest to occur of (i) the date
upon which Levin's estate holds less than 5% of the
outstanding shares of BKF common stock, (ii) the date which is
three years following his death or disability or (iii) the
fifth anniversary of the Effective Date.
b. Disability.
i. The Companies may, by action of the Board, terminate Levin's
employment under this Agreement upon advance written notice to
Levin, in the event that Levin becomes disabled so as to be
unable to perform substantially all of his material duties
under this Agreement and remains so disabled for a continuous
period of six (6) consecutive months (a "Disability"). In
addition, the Board may designate another employee to act in
Levin's place during any period in which he is disabled.
ii. Until Levin has suffered a Disability for a period of six (6)
consecutive months, Levin shall continue to receive the Base
Salaries and shall continue to be eligible for a Bonus for the
then-current calendar year and such other benefits as may be
provided for under the terms of any applicable benefit plan;
provided that the amount of such Base Salaries may be reduced
by the aggregate amount of disability benefits, if any, paid
to Levin under the Companies' disability income plans.
iii. Following the Companies' termination of Levin's employment due
to Disability, Levin's Base Salaries shall be discontinued
under Section 5(b)(ii), except that Levin shall be entitled to
receive the pro rata portion of either (i) the Compensation
Plan Bonus for the year in which Levin's employment is
terminated because of Disability, if a Compensation Plan is in
effect at such time, or (ii) if no Compensation Plan is then
in effect, an amount equal to the amount of the highest
Discretionary Bonus, if any, paid to Levin during the Term,
unless Levin's employment is terminated because of Disability
during the first year of the Term, in which case the pro rated
amount of Discretionary Bonus shall be determined at the sole
discretion of the Compensation Committee of the Board. The
Companies
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Levin Employment Agreement
shall otherwise have no further obligation or liability under
this Agreement in respect to Levin.
iv. Any question as to the existence of the Disability of Levin as
to which Levin and the Companies cannot agree shall be
determined in writing by a qualified independent physician
mutually acceptable to Levin and the Company. If Levin and the
Company cannot agree as to a qualified independent physician,
each shall appoint such a physician and those two physicians
shall select a third who shall make such determination in
writing. The determination of whether or not Levin shall have
suffered a Disability made in writing to the Companies and
Levin shall be final and conclusive for all purposes of this
Agreement.
c. For Cause. The Companies may, by action of a majority of the members of
the Board who are not "interested persons" of BKF or Merger Subsidiary,
terminate Levin's employment under this Agreement for Cause (as hereinafter
defined) at any time upon advance written notice to Levin. For purposes of this
Agreement, the term "interested person" shall be construed in accordance with
the definition contained in Section 2(a)( 19) of the 1940 Act, as amended, and
as modified by the Order. The following shall constitute "Cause" for
termination:
i. Levin's conviction of a felony (which through lapse of time or
otherwise is not subject to appeal); or
ii. Levin's willful, continuing and repeated refusal without
proper cause to perform his obligations under this Agreement
(other than as a result of Levin's physical or mental
incapacity); provided that no termination shall be effective
under this clause (ii) unless Levin shall have first received
written notice from the Companies describing the basis of such
termination for Cause and within 10 days following the
delivery of such notice Levin shall have refused to perform or
in good faith commence the performance of his obligations
under this Agreement.
In no event shall the ineffectiveness or incompetence of Levin
in the performance of his duties hereunder or a bona fide
disagreement over corporate policy be deemed grounds for
termination for Cause.
Upon termination of Levin's employment for Cause, the Companies shall have no
further obligation or liability to Levin, other than for Base Salaries earned
and unpaid at the date of termination and any Bonus as may previously have been
awarded to Levin (but which remains unpaid).
d. Other than for Cause. The Companies may, by action by the Board,
terminate Levin's employment under this Agreement other than for Cause upon
advance written notice to Levin. In the event of such termination, then until
the earlier of (i) the conclusion of a period equal to the remainder of the Term
or (ii) the conclusion of a period of three (3) years following the date of
termination, the Companies shall continue to pay Levin the Base Salaries at the
rate in
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Levin Employment Agreement
effect on the date of termination. For the same period or, if earlier, until
Levin is employed with comparable health coverage, the Companies shall also (i)
pay Levin an amount equal to the current cost to the Companies of Levin's
medical and dental insurance plan coverage at the date of termination under the
Companies' plans or (ii) provide for Levin's continued participation in such
plans, but in either case subject to any employee contribution applicable to
Levin on the date of termination and any subsequent general amendment to the
plans. It shall be in the Board's sole discretion to determine whether, for any
period, Levin will receive payment in lieu of actual coverage under the
Companies' medical and dental insurance plans; provided that the foregoing shall
not limit any right Levin may have under any applicable federal or state
continuation coverage laws or conversion rights under the medical and dental
insurance plan. In addition, Merger Subsidiary shall pay Levin (i) the
Compensation Plan Bonus otherwise payable for the year in which such termination
of employment occurs had Levin continued to be employed for the entire calendar
year or (ii) if no Compensation Plan is then in effect, an amount equal to the
amount of the highest Discretionary Bonus paid to Levin during the Term unless
such termination occurs during the first year of the Term, in which case the
amount of the Discretionary Bonus shall be determined in the sole discretion of
the Compensation Committee of the Board. Merger Subsidiary shall have no
obligation to pay any Bonus for any time period thereafter. Other than the Base
Salaries, Bonus, accrued but unpaid Base Salaries, if any, and the benefits
previously described in this Section 5(d), Merger Subsidiary shall pay Levin any
Bonus as may previously have been awarded in accordance with Section 4(b) hereto
(but which remains unpaid), but the Companies shall otherwise have no further
obligation or liability in respect of Levin under this Agreement.
Notwithstanding any other provision of this Agreement to the contrary,
Levin acknowledges and agrees that any and all payments to which he is entitled
under this Section 5(d) are conditioned upon and subject to his execution of a
general waiver and release, in such form as may be reasonably acceptable to the
Companies and Levin, of all claims and issues arising under the Employment
Agreement, except for such matters covered by provisions of this Agreement which
expressly survive the termination of this Agreement.
e. By Levin
i. Levin shall provide the Companies ninety (90) days' advance
written notice in the event he terminates his employment other
than for Good Reason (as hereinafter defined); provided that
the Board may, in its sole discretion, terminate Levin's
employment with the Companies prior to the expiration of the
ninety (90) day notice period. In such event and upon the
expiration of such 90-day period (or such shorter period as
the Board may in its sole discretion determine), Levin's
employment under this Agreement shall immediately and
automatically terminate, and the Companies shall pay him any
Base Salary earned and unpaid as of his termination date and
Merger Subsidiary shall pay him any Bonus as may previously
have been awarded to Levin in accordance Section 4(b) (but
which remains unpaid), but the Companies shall otherwise have
no further obligation or liability in respect of Levin under
this Agreement.
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Levin Employment Agreement
ii. Levin may terminate his employment hereunder for "Good Reason"
if at any time during the Term the Companies shall be in a
material breach of their obligations hereunder. The parties
acknowledge and agree that a material breach for purposes of
this Section 5(e)(ii) shall include, but not be limited to,
(x) any material reduction in Levin's duties, authority,
status or responsibilities (whether or not accompanied by a
change in title) all as set forth in Section 3 above, (y) a
reduction in Levin's Base Salaries, or other material
reduction of his other compensation, perquisites or benefits
(other than as a result, as determined by the Board in its
sole discretion, of decreased earnings of either BKF or Merger
Subsidiary as compared to their respective most recently
completed fiscal years) or (z) any requirement that Levin be
based at a location other than the principal executive
officers of Merger Subsidiary in the City of New York. No
termination for Good Reason shall be permitted unless the
Companies shall have first received written notice from Levin
describing the basis of such termination for Good Reason and
within ten (10) days following the delivery of such notice the
Companies shall not have cured or in good faith commenced the
cure of the breach specified in such notice.
A termination of Levin's employment for Good Reason pursuant to Section 5(e)(ii)
shall be treated for purposes of this Agreement as a termination by the
Companies other than for Cause and the provisions of Section 5(d) relating to
the payment of compensation and benefits shall apply.
6. Effect of Termination. The provisions of this Section 6 shall apply
upon the expiration of the Term, or upon earlier termination pursuant to Section
5.
a. Except as specifically provided in this Agreement, any benefits which
Levin is entitled to receive under any employee benefit plan of the Companies
shall be determined and paid only in accordance with the terms of such plan as
then in effect; provided that any further accrual of benefits under any such
plan shall terminate pursuant to the terms of such plan based on the date of
termination of Levin's employment and without regard to any continuation of Base
Salaries or other payments to Levin following such date of termination.
b. Provisions of this Agreement shall survive any termination if expressly
provided in this Agreement or if necessary or desirable to fully accomplish the
purposes of such provision; provided that the provisions of Sections 5,7,8,9,
10, 11, 12 and 15 shall in all events survive any termination of Levin' s
employment and the expiration of the Term.
c. In the event of termination of Levin, and upon the request of the
Companies, Levin will keep the termination confidential until the Companies have
a reasonable period of time to notify clients and others of such termination.
d. The obligation of the Companies to make any payments to or on behalf of
Levin under this Agreement shall terminate in the event of Levin's willful or
grossly negligent material breach of his obligations under Sections 8 and 10 if,
within ten (10) days following the delivery
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Levin Employment Agreement
of written notice to Levin by the Companies describing such alleged material
breach, Levin shall have failed to cease, or in good faith commence to cease,
the activities constituting such material breach of such obligations. The
obligation of the Companies to make any payment to or on behalf of Levin under
this Agreement shall terminate in the event of Levin's willful or grossly
negligent material breach of his obligations under Section 7, provided that if
such breach is curable such termination of payments shall only be effective if,
within ten (10) days following delivery of written notice to Levin by the
Companies describing such alleged material breach, Levin shall have failed to
cure, or in good faith have commenced to cure, the material breach of such
obligations.
e. Other than as set forth in Section 5(a)(ii) of this Agreement, in the
event of termination of Levin, Levin shall immediately tender his or her
resignation from the Board of Directors of Merger Subsidiary.
7. Confidential Information.
a. Levin acknowledges that the Companies and their affiliates have
developed and will continually develop Confidential Information; and that Levin
may have learned or may continue to learn of Confidential Information during the
course of employment with the Companies. Levin will comply with the reasonable
policies and procedures of the Companies and their affiliates, as amended from
time to time, for protecting Confidential Information and for so long as such
information is not publicly available (other than through the act or omission of
Levin), Levin will not disclose to any person (other than his legal
representatives, counsel and accountants and except as required by court order
or applicable law or for the proper performance of Levin's duties and
responsibilities to the Companies or in defense to any claim asserted against
Levin by the Company), or use for the benefit or gain of Levin or any entity
other than the Companies, any Confidential Information without the prior written
consent of specifically authorized representatives of the Companies. Prior to
Levin's disclosure of any Confidential Information pursuant to court order,
applicable law, or in defense to any claim asserted against him, Levin shall
provide reasonable advance notice to the Companies sufficient to enable the
Companies to contest the disclosure or provision of such Confidential
Information. Levin understands that this restriction shall continue to apply
after Levin's employment terminates, regardless of the reason for such
termination.
b. Levin shall protect the integrity of Confidential Information and shall
use reasonable efforts to keep confidential all documents, records, tapes and
other media of every kind and description relating to the business, present or
otherwise, of the Companies or their affiliates and any copies, in whole or in
part, thereof (the "Documents") containing Confidential Information. All
Documents, whether or not containing Confidential Information and whether or not
prepared by Levin (other than Documents containing exclusively Confidential
Family Information not otherwise required to be maintained by the Companies
under applicable law, including the Advisers Act), shall be the sole and
exclusive property of the Companies and their affiliates. Levin shall use
reasonable efforts to safeguard all Documents, and all Confidential Information
they contain, and shall surrender to BKF at the time his employment terminates
all Documents then in Levin's possession or control, other than Documents
containing exclusively
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Levin Employment Agreement
Confidential Family Information not otherwise required to be maintained by the
Companies under applicable law, including the Advisers Act.
c. "Confidential Information" means any and all information of the
Companies and their affiliates that is not generally known by others with whom
they did or do compete or do business, or with whom they plan to compete or do
business, other than (i) information which is publicly available (other than
through the act or omission of Levin) and (ii) Confidential Family Information.
Confidential Information includes without limitation such information relating
to (i) the development, research, marketing and financial activities of the
Companies and their affiliates, (ii) the Products and Services (as hereinafter
defined), (iii) the financial performance and strategic plans of the Companies
and their affiliates (other than Family Members), (xv) the identity and special
needs of the clients of the Companies and their affiliates and (v) the people
and organizations with whom the Companies and their affiliates have had or have
business relationships and those relationships. Confidential Information also
includes comparable information that the Companies or any of their affiliates
have received, belonging to clients or others who do business with the Companies
or any of their affiliates (other than Family Members) or any other information
that is, or has been, received by the Companies or any of their affiliates with
any understanding, express or implied, that it will not be disclosed (other than
Confidential Family Information).
d. "Products and Services" means all products and services offered,
planned, researched, developed, tested, sold, licensed, marketed or otherwise
provided by the Companies or any of their affiliates during Levin's employment.
e. The Companies acknowledge that Levin possesses and will continue to
obtain and possess Confidential Family Information and that the Companies may
have learned or may continue to learn Confidential Family Information during the
course of Levin's employment with the Companies. For so long as such information
is not publicly available (other than through the act or omission of either of
the Companies or their affiliates) the Companies will not disclose to any person
or entity (other than their legal representatives, counsel and accountants, and
except as required by court order or applicable law including the Advisers Act,
or for the proper performance of the duties and responsibilities of the
Companies to Levin or in defense to any claim asserted against the Companies by
Levin) or use for the benefit or gain of the Companies or any entity other than
Levin, any Confidential Family Information without the prior written consent of
Levin. Prior to the Companies' disclosure of any Confidential Family Information
pursuant to court order, applicable law, or in defense to any claim asserted
against it by Levin, the Companies shall provide reasonable advance notice to
Levin sufficient to enable Levin to contest the disclosure or provision of such
Confidential Information. The Companies understand that this restriction shall
continue to apply after Levin's employment terminates, regardless of the reason
for such termination.
f. The Companies shall protect the integrity of the Confidential Family
Information and shall use reasonable efforts to keep confidential all documents.
records, tapes and other media of every kind and description relating to the
business and investments, present or otherwise, of Family Members and any
Documents containing Confidential Family Information.
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Levin Employment Agreement
Except with respect to Documents that are required to be maintained by the
Companies under applicable law, including the Advisers Act, all Documents
containing exclusively Confidential Family Information shall be the sole and
exclusive property of Levin. The Companies shall safeguard all such Documents
and all Confidential Family Information and shall surrender to Levin at the time
his employment terminates all such Documents then in the possession or control
of the Companies or their affiliates, other than Documents that are required to
be maintained by the Companies or their affiliates under applicable law,
including the Advisers Act.
g. "Confidential Family Information" means any personal information
relating to Levin or any Family Members and any information regarding the
management of the Family Assets that is distinctly unique to the Family Assets,
and any other information received by any of the Companies from Levin regarding
any Family Member, except for such information that is publicly available other
than through the act or omission of any of the Companies or their affiliates.
8. Restricted Activities. Levin agrees that some restrictions on his
activities during and after the termination of employment are necessary to
protect the goodwill, Confidential Information, client relationships and other
legitimate interests of the Companies and their affiliates:
a. While Levin is employed by the Companies and during a period (i) five
(5) years following the Effective Date, in the event Levin's employment is
terminated by the Companies for Cause or is voluntarily terminated by Levin
without Good Reason or (ii) two (2) years following the date of termination of
Levin's employment by the Companies for reasons other than for Cause or by Levin
for Good Reason (provided that such period shall not extend longer than five (5)
years following the Effective Date) (such period, as applicable, hereinafter
referred to as the "Non-Competition Period"), Levin shall not, directly or
indirectly, whether as owner, partner, principal, investor, consultant, agent,
employee, co-venturer or otherwise, compete with the Companies or any of their
affiliates within the United States in the money management business
("Competitive Endeavors") or undertake any planning for any business which would
constitute a Competitive Endeavor; provided, however, that in no event shall the
management of Family Assets constitute a Competitive Endeavor and provided,
further, that nothing herein shall prohibit Levin from becoming an employee,
director or consultant of any entity which may, directly or through its
affiliates, engage in the money management business, so long as Levin's
responsibilities do not include participation, solicitation, consultation,
marketing, recommendation or advice with respect to such money management
business and Levin does not, directly or indirectly, participate, solicit,
consult, market, recommend or advise or make referrals with respect to such
money management business. Other than as set forth above, restricted activity
includes without limitation accepting employment or a consulting position with
any person who is, or at any time prior to termination of Levin's employment has
been, a client of the Companies or any of their affiliates. For the purposes of
this Section, the business of the Companies and their affiliates shall include
all Products and Services offered by the Companies or any of their affiliates or
under development and Levin's undertaking shall encompass all products and
services that may be used in substitution for Products and Services.
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Levin Employment Agreement
b. Levin agrees that, during his employment with the Companies, he will
not, without the prior written approval of the Board, undertake any outside
activity, whether or not competitive with the business of the Companies or their
affiliates, that could reasonably give rise to a conflict of interest or
otherwise interfere with his duties and obligations to the Companies or any of
their affiliates. Notwithstanding the foregoing, Levin may (i) continue to serve
as a director or member of a committee of any of the entities listed in Schedule
3(c) hereto in accordance with the Codes of Ethics, (ii) to the extent such
activities are not competitive with the business of the Companies or their
affiliates, engage in charitable, civic or other community activities without
compensation to him and (iii) render without compensation investment advisory
and trust services with respect to the Family Assets and to one or more Family
Members.
c. Levin agrees that, during the Non-Competition Period, he will not hire
or attempt to hire any employee of the Companies or any of their affiliates,
assist in such hiring by any person or encourage any such employee to terminate
his or her relationship with the Companies or any of their affiliates.
d. Levin further agrees that, during the Non-Competition Period, he will
not, directly or indirectly, solicit or encourage any clients or others who do
business with the Companies or any of their affiliates to terminate or diminish
their relationship with any of them or to violate any agreement with any of
them, and while Levin is employed by the Companies and during the period ending
five (5) years following the Effective Date in the event Levin's employment is
terminated by the Companies for Cause or is voluntarily terminated by Levin
without Good Reason, Levin will not conduct, either directly or indirectly, with
any person any business or activity that such client or other person conducts or
could conduct with the Companies or any of their affiliates.
e. Levin agrees that he will (i) comply with the Codes of Ethics and (ii)
notify the Board of all directorships or memberships on a board of directors or
board of trustees held by him, regardless of whether (y) such office was held
prior to the date hereof or (z) such office would require prior written consent
of the Board. Levin further agrees that, during his employment with the
Companies, he will not become, without the prior written approval of the Board,
a member of the board of directors or board of trustees of any public company or
of any company that could reasonably be expected to become an appropriate
investment for any client of the Companies in an account managed by the
Companies.
f. The parties intend that the non-competition, non-solicitation and
non-servicing provisions of this Section 8 shall be deemed to be a series of
separate covenants, one for each and every county of each and every state of the
United States of America and each and every political subdivision of each and
every country outside the United States of America where this provision is
intended to be effective.
9. Cooperation With Regard to Litigation. Levin agrees to cooperate with
the Companies during the Term and thereafter (including following Levin's
termination of employment for any reason), by making himself reasonably
available to testify on behalf of a
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Levin Employment Agreement
Company or any of its affiliates, in any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, relating to events which
occurred either during Levin's employment with the Companies and/or during
Levin's prior employment with LEVCO and any of its related entities, and to
assist a Company, or any of its affiliates, in any such action, suit, or
proceeding, by providing information and meeting and consulting with the Board
or its representatives or counsel, or representatives or counsel to the
Companies or any of their affiliates, as reasonably requested by the Board or
such representatives or counsel. Either Company, as the case may be, agrees to
reimburse Levin, on an after-tax basis, for expenses reasonably incurred in
connection with such provision of testimony or assistance.
10. Notification Requirement. Until the conclusion of the Non-Competition
Period, Levin shall give notice to the Companies of any change in his address
and of each new job or other business activity that he plans to undertake, at
least seven (7) days prior to beginning any such activity. Such notice shall
state the nature of the activity, the name and address of the person for whom
such job or activity is undertaken and the nature of Levin's business
relationship(s) and position(s) with such person. Levin shall provide the
Companies with such other pertinent information concerning such business
activity as the Companies may reasonably request in order to determine Levin's
continued compliance with his obligations under Sections 7,8,9 and 10.
11. Enforcement of Covenants.
(i) Levin acknowledges that he has carefully read and considered all the
terms and conditions of this Agreement, including the conditions and restraints
imposed upon him pursuant to Sections 7, 8, 9 and 10. Levin agrees that said
conditions and restraints are necessary for the reasonable and proper protection
of the Companies and their affiliates and that each and every one of the
conditions and restraints is reasonable in respect to subject matter, length of
time and geographic area, in view of the receipt of consideration pursuant to
the Merger Agreement, in the transactions contemplated above, the geographic
scope and nature of the business in which the Companies are and will continue to
be engaged, his knowledge of the Companies' business, and his relationships with
the Companies' investment advisory and trust clients. Levin further acknowledges
that, were he to breach any of the covenants contained in Sections 7, 8, 9 or
10, the damage to the Companies would be irreparable. Levin therefore agrees
that the Companies, in addition to any other remedies available to them, shall
be entitled to temporary preliminary and permanent injunctive relief against any
breach or threatened breach by him of any of said covenants, without having to
post bond, in a court of competent jurisdiction. The parties further agree that,
in the event that any provision of Sections 7, 8, 9 or 10 shall be determined by
any court of competent jurisdiction to be unenforceable by reason of its being
extended over too great a time, too large a geographic area or too great a range
of activities, such provision shall be deemed to be modified to permit its
enforcement to the maximum extent permitted by law. The non-prevailing party in
any action brought pursuant to this Section 11(i) shall indemnify and hold
harmless the prevailing party from and against all reasonable legal fees and
expenses paid or incurred by them in connection with such action.
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Levin Employment Agreement
(ii) The Companies acknowledge that they have carefully read and
considered all the terms and conditions of this Agreement, including the
conditions and restraint imposed upon them in Section 7(e), above. The Companies
further acknowledge that were they to breach the confidentiality provision set
forth in Section 7(e) above, the damage to Levin would be irreparable. The
Companies therefore agree that Levin, in addition to any other remedies
available to him, shall be entitled to preliminary and permanent injunctive
relief against any breach or threatened breach of Section 7(e), without having
to post bond, in a court of competent jurisdiction. The non-prevailing party in
any action brought pursuant to this Section 11(ii) shall indemnify and hold
harmless the prevailing party from and against all reasonable legal fees and
expenses paid or incurred by them in connection with such action.
12. Arbitration. Other than an action brought under Section 11, which may
be brought directly in any court of competent jurisdiction, any dispute or
controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration in New York, New York in accordance with the rules of
the American Arbitration Association before a board of three (3) disinterested
persons, consisting of one arbitrator to be appointed by the Companies, one by
Levin, and one by the arbitrators so chosen. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. For purposes of entering
any judgment upon an award rendered by the arbitrators, the Companies hereby
consent to the jurisdiction of any or all of the following courts: (i) the
United States District Court for the Southern District of New York, (ii) any of
the courts of the State of New York, or (iii) any other court having
jurisdiction. The Companies further agree that any service of process or notice
requirements in any such proceeding shall be satisfied if the rules of such
court relating thereto have been substantially satisfied. The Companies and
Levin hereby waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to such jurisdiction and any
defense of inconvenient forum. The Companies and Levin hereby agree that a
judgment upon an arbitrator's award may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. To the extent Levin
substantially prevails in any arbitration pursuant to this Section 12, the
Companies shall indemnify and hold harmless Levin from and against all
reasonable legal fees and expenses paid or incurred by him in connection with
such arbitration. Notwithstanding any other provision of this Agreement, any
payment to Levin under this Agreement shall be postponed during the pendency of
any dispute or controversy arising under or in connection with this Agreement.
13. Withholding. All payments made by the Companies under this Agreement
shall be reduced by any tax or other amounts required to be withheld by the
Companies under applicable law.
14. Assignment. Neither of the Companies nor Levin may make any assignment
of this Agreement, or any interest in it, by operation of law or otherwise,
without the prior written consent of the other; provided, however, that a
Company may assign its rights and obligations under this Agreement without the
consent of Levin in the event that such Company shall effect a reorganization,
consolidate with, or merge into any other entity or transfer all or
substantially all of its properties or assets to any other entity; provided,
further, that in the event of such reorganization, consolidation or merger, the
Company shall require any successor (whether direct
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Levin Employment Agreement
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company 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. This Agreement shall inure to the benefit of and be binding
upon the Companies, their respective successors, and permitted assigns. This
Agreement shall also inure to the benefit of and be binding upon Levin, his
executors, administrators and heirs.
15. Indemnification The Companies will indemnify Levin to the fullest
extent permitted by the General Corporation Law of the State of Delaware or as
otherwise set forth in their respective certificates of incorporation and
by-laws as of the date hereof, and in accordance with applicable law, including
the 1940 Act. During the Term, the Companies will maintain customary officers
and directors insurance substantially similar to such insurance as is currently
in effect with respect to the senior executives and directors of BKF.
16. Mitigation. Levin shall have no duty to mitigate the amount of any
payment or benefit provided hereunder by seeking alternative employment
following his termination of employment with the Companies. To the extent that
Levin obtains or undertakes other employment, Levin shall be obligated to
mitigate the amount of any payment or benefit provided for in this Agreement to
the extent of any payment or benefit received from such other employment, and
the amounts contained herein shall be correspondingly reduced.
17. Severability. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
18. Waiver. No waiver of any provision of this Agreement shall be
effective unless made in writing and signed by the waiving party. The failure of
either party to require the performance of any term or obligation of this
Agreement, or the waiver by either party of any breach of this Agreement, shall
not prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
19. Notices. Any and all notices, requests, demands and other
communications provided for or required by this Agreement shall be in writing
and shall be effective when delivered in person or deposited in the United
States mail, postage prepaid, registered or certified, and addressed to Levin at
his last known address on the books of BKF, in the case of BKF, at its principal
place of business, Attention: Chairman of the Board, or in the case of Merger
Subsidiary, at its principal place of business, Attention: John A. Levin or to
such other address as Levin or the Companies may specify by notice to the
others.
20. Entire Agreement. This agreement constitutes the entire agreement
between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of
Levin's employment, other than the Merger Agreement.
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17
21. Amendment. This Agreement may be amended or modified only by a written
instrument signed by Levin and by an authorized representative of each of the
Companies, it being understood that any such action on behalf of the Companies
may be taken only with the prior approval of the Board.
22. Headings. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
23. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
24. Governing Laws. This is a New York contract and shall be construed and
enforced under and be governed in all respects by the substantive laws of The
State of New York, without regard to the conflict of laws principles thereof.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument as of the date first above written.
JOHN A.LEVIN BAKER, FENTRESS & COMPANY
/s/ John A. Levin
- ------------------------------- By:__________________________
John A. Levin
Title:__________________________
JALC ACQUISITION CORP.
By:__________________________
Title:__________________________
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Levin Employment Agreement
21. Amendment. This Agreement may be amended or modified only by a written
instrument signed by Levin and by an authorized representative of each of the
Companies, it being understood that any such action on behalf of the Companies
may be taken only with the prior approval of the Board.
22. Headings. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
23. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
24. Governing Laws. This is a New York contract and shall be construed and
enforced under and be governed in all respects by the substantive laws of The
State of New York, without regard to the conflict of laws principles thereof.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument as of the date first above written.
JOHN A. LEVIN BAKER, FENTRESS & COMPANY
/s/ John A. Levin By: /s/ James P. Gorter
- ---------------------------- ------------------------------
John A. Levin
Title: CHAIRMAN
------------------------------
JALC ACQUISITION CORP.
By: /s/ James P. Gorter
------------------------------
Title: CHAIRMAN
------------------------------
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Schedule 3(c)
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1. Morgan Stanley Africa Investment Fund, Inc.
2. Morgan Stanley Asia - Pacific Fund, Inc.
3. Morgan Stanley Emerging Markets Fund, Inc.
4. Morgan Stanley Emerging Markets Debt Fund, Inc.
5. Morgan Stanley Global Opportunity Bond Fund, Inc.
6. The Brazilian Investment Fund, Inc.
7. The Latin American Discovery Fund, Inc.
8. The Morgan Stanley High Yield Fund, Inc.
9. The Morgan Stanley India Investment Fund, Inc.
10. The Malaysia Fund, Inc.
11. The Pakistan Investment Fund, Inc.
12. The Thai Fund, Inc.
13. The Turkish Investment Fund, Inc.
14. Lincoln Center for the Performing Arts, Inc.
15. The National Institute for the Deaf
16. The Whitney Museum of American Folk Art
17. Mt. Sinai Medical Center
18. Yale University