EXHIBIT 10.45
AMENDED EMPLOYMENT AGREEMENT
THIS AMENDED EMPLOYMENT AGREEMENT (this "Agreement") is entered into
effective November 10, 2004 by and between Fair Xxxxx Corporation (the
"Company"), a Delaware corporation having its headquarters at 000 Xxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000, and Xxxxxx X. Xxxxx, a resident of
Indiana ("Executive").
A. The Company and HSR Acquisition, Inc. ("Acquisition"), a Delaware
corporation and a wholly-owned subsidiary of the Company, have entered into an
Agreement and Plan of Merger ("Merger Agreement") with Xxxxx Consulting, Inc.
("Xxxxx"), a Delaware corporation, pursuant to which Acquisition will merge with
and into Xxxxx, with Xxxxx being the surviving entity (the "Merger") as a
wholly-owned subsidiary of the Company.
B. Executive has served as Chief Executive Officer of Xxxxx and as
Chairman of Xxxxx'x Board of Directors, and is a shareholder of Xxxxx. Executive
owns, in his name or in trust for members of his family, 8,566,447 shares of
Xxxxx, such shares constituting approximately 50% of the outstanding shares of
Xxxxx.
C. Executive's commitment to use his best efforts to achieve certain
performance objectives for the Company for a period of up to three years, as set
out in this Agreement, is a condition of the Merger.
D. Pursuant to the Merger Agreement, Executive shall receive
substantial benefit from the Merger, including without limitation cash payment
of $2.34 for each of the shares held by Executive, subject to a cash hold-back
of $3,250,000 from the purchase price to be paid to Executive, as set forth in
this Agreement.
E. Executive desires to be employed with the Company following the
Merger, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements of the Company and Executive set forth below, the Company
and Executive, intending to be legally bound, agree as follows:
1. Employment. Effective immediately following consummation of the
Merger (the "Effective Date"), the Company shall initially employ Executive as a
Vice President, and Executive shall accept such employment and perform services
for the Company, upon the terms and conditions set forth in this Agreement.
2. Term. The Company agrees to employ Executive and Executive agrees
to be employed by the Company on a full-time basis for the period commencing on
the Effective Date and ending on September 30, 2007 (the "Initial Term"), unless
Executive's
employment is sooner terminated pursuant to Section 8 hereof. Following the
Initial Term, continuation of Executive's employment hereunder shall be
continued on such terms as determined from time to time by the Company, subject
to termination at any time by either Executive or the Company.
3. Position and Duties.
(a) Position. During Executive's employment with the Company during
the Initial Term, Executive's title shall be Vice President. Executive shall
perform such duties and responsibilities as the Company shall assign to him from
time to time consistent with his position. Executive's primary work location
during the Initial Term shall be the Company's office (formerly Xxxxx'x office)
in Chicago, Illinois. In order to facilitate smooth integration and transition
and to maximize personnel retention from Xxxxx following the Merger, during the
Initial Term Executive shall spend an average of at least 50% of his working
time in the Chicago office and an average of 40% of his working time in the
aggregate (i) working at the New York, Boston and Indianapolis offices (formerly
Xxxxx offices) or (ii) traveling for purposes of participating in client
engagement meetings. During the first six (6) months following the Effective
Date, Executive's primary focus will be integration and transition activities
for the Chicago office and Executive will devote a substantial portion of his
time working in the Chicago office as needed to ensure a successful transition,
unless the Company otherwise directs Executive to perform other significant
duties and responsibilities that would prevent Executive from complying with the
provisions of this Section 3(a).
(b) Performance of Duties and Responsibilities. Executive shall
serve the Company faithfully and to the best of his ability and shall devote his
full working time, attention and efforts to the business of the Company during
his employment with the Company. Executive hereby represents and confirms that
he is under no contractual or legal commitments that would prevent him from
fulfilling his duties and responsibilities as set forth in this Agreement.
During his employment with the Company, Executive may participate in charitable
activities and personal investment activities to a reasonable extent, so long as
such activities do not unreasonably interfere with the performance of his duties
and responsibilities hereunder.
4. Compensation.
(a) Base Salary. While Executive is employed by the Company
hereunder during the Initial Term, the Company shall pay to Executive an
annualized Base Salary of $300,000, less all legally required and authorized
deductions and withholdings, which Base Salary shall be paid in accordance with
the Company's normal payroll policies and procedures. During each year of
Executive's employment hereunder, the Company shall conduct an annual
performance review of Executive and thereafter establish Executive's Base Salary
in an amount not less than the Base Salary in effect for the prior year.
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Executive's Base Salary shall not be reduced unless such reduction is made as
part of a general reduction in the base salaries for all senior management of
the Company.
(b) Incentive Awards. For each full fiscal year during the Initial
Term that Executive is employed by the Company hereunder, Executive shall be
eligible to participate in the Company's Management Incentive Plan or any
similar or successor bonus plan of the Company as in effect from time to time,
in accordance with the terms of such incentive plan.
(c) Stock Options. Subject to approval of the Compensation Committee
of the Board of Directors (the "Compensation Committee") and a written stock
option agreement to be entered into by the Company and Executive, the Company
shall grant Executive a nonstatutory option to purchase 75,000 shares of common
stock of the Company pursuant to one of the Company's equity award plans. Such
option shall vest 50% on the date that is two years after the Effective Date and
shall vest the remaining 50% on the date that is four years after the Effective
Date. Executive shall be eligible for annual option grants consistent with the
Company's program for performance-based grants to employees at a comparable job
level as Executive, as in effect from time to time.
(d) Restricted Stock. Subject to approval of the Company's
Compensation Committee and a written restricted stock agreement to be entered
into by the Company and Executive, the Company shall grant Executive 25,000
shares of restricted stock of the Company pursuant to one of the Company's
equity award plans. Such restricted stock shall vest and the restrictions lapse
with respect to 50% of the shares on the date that is two years after the
Effective Date and with respect to the remaining 50% of the shares on the date
that is four years after the Effective Date. Subsequent grants of restricted
stock, if any, shall be in the sole discretion of the Board.
(e) Employee Benefits. While Executive is employed by the Company
hereunder, Executive shall be entitled to participate in the employee benefit
plans and programs of the Company, to the extent that Executive meets the
eligibility requirements for each individual plan or program. Executive
acknowledges that his participation in any such plan or program shall be subject
to the provisions, rules and regulations applicable thereto, and that such plans
and programs may be modified or terminated by the Company from time to time.
Executive will participate in the Company's paid-time-off policies at such time
as other Braun employees are transitioned and will accrue time off at a rate
consistent with his years of service as credited by Xxxxx.
(f) Expenses. While Executive is employed by the Company hereunder,
the Company shall reimburse Executive for all reasonable and necessary
out-of-pocket business, travel and entertainment expenses incurred by him in the
performance of his duties and responsibilities hereunder, subject to the
Company's normal policies and procedures for expense verification and
documentation.
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5. Purchase Price Hold-Back.
(a) Amount of Hold-Back. The Company shall hold back from the
purchase price payable to Executive under the Merger Agreement the amount of
$3,250,000 ("Hold-Back").
(b) Payment of Performance Hold-Back. The Hold-Back shall be payable
to Executive upon achievement of the first to occur of the following revenue
objectives (each a "Revenue Objective"):
(i) The revenues for the consulting business previously
operated as Xxxxx exceed $35 million for the fiscal year
ending September 30, 2005;
(ii) The combined revenues for the Company's marketing
consulting services business (including but not limited
to the consulting business previously operated as Xxxxx)
exceed $165 million for the fiscal years ending
September 30, 2005 and 2006; or
(iii) The combined revenues for the Company's marketing
consulting services business (including but not limited
to the consulting business previously operated as Xxxxx)
exceed $277 million for the fiscal years ending
September 30, 2005, 2006 and 2007.
Determination of revenues and achievement of Revenue Objectives shall be made by
the Company in accordance with generally accepted accounting principles as
consistently applied by the Company. The Hold-Back shall be paid to Executive in
full within ten (10) days following completion of the audited financial
statements of the Company for the applicable fiscal year if it is determined
that a Revenue Objective has been met.
(c) Failure of Company to Meet Revenue Objectives. Subject to
Section 10(b) of this Agreement, if during the Initial Term the Company does not
achieve any of the Revenue Objectives, then Executive shall forfeit the
Hold-Back and the Company shall have no further obligation to pay the Hold-Back
to Executive.
6. Proprietary Information Agreement. Simultaneous with his
execution of this Agreement, Executive will sign the Company's Employee
Information and Inventions Agreement attached hereto as Exhibit A (the
"Proprietary Information Agreement"). Nothing in this Agreement is intended to
modify, amend, cancel, or supersede the Proprietary Information Agreement in any
manner.
7. Management Agreement. At the same time as Executive and the
Company enter into this Agreement, the parties shall also enter into the
Management Agreement attached hereto as Exhibit B (the "Management Agreement").
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8. Noncompetition Covenant.
(a) Agreement Not to Compete. During the term of Executive's
employment with the Company and for a period of 24 consecutive months from the
date of the termination of such employment, whether such termination is with or
without Cause (as defined below), whether such termination occurs during or
after the Initial Term, or whether such termination is at the instance of
Executive or the Company, Executive shall not, directly or indirectly, in any
geographic location where the Company is then actively engaged in business,
engage in any business that the Company is engaged in or actively contemplating
entering into during the term of Executive's employment with the Company, or any
part of such business, including without limitation the business of developing
or providing services or products relating to creative analytics, predictive
modeling, decision analysis, intelligence management, or decision management
systems, or related consulting services, in any manner or capacity, including
without limitation as a proprietor, principal, agent, partner, officer,
director, stockholder, employee, member of any association, consultant or
otherwise. Ownership by Executive, as a passive investment, of less than 2.5% of
the outstanding shares of capital stock of any corporation listed on a national
securities exchange or publicly traded in the over-the-counter market shall not
constitute a breach of this Section 8(a).
(b) Acknowledgment. Executive hereby acknowledges that the
provisions of this Section 8 are reasonable and necessary to protect the
legitimate interests of the Company and that any violation of this Section 8 by
Executive shall cause substantial and irreparable harm to the Company to such an
extent that monetary damages alone would be an inadequate remedy therefor.
Therefore, in the event that Executive violates any provision of this Section 8,
the Company shall be entitled to an injunction, in addition to all the other
remedies it may have, restraining Executive from violating or continuing to
violate such provision.
(c) Blue Pencil Doctrine. If the duration of, the scope of or any
business activity covered by any provision of this Section 8 is in excess of
what is valid and enforceable under applicable law, such provision shall be
construed to cover only that duration, scope or activity that is valid and
enforceable. Executive hereby acknowledges that this Section 8 shall be given
the construction which renders its provisions valid and enforceable to the
maximum extent, not exceeding its express terms, possible under applicable law.
9. Termination of Employment.
(a) The Executive's employment with the Company shall terminate
upon:
(i) Executive's receipt of written notice from the Company
of the termination of his employment;
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(ii) Executive's resignation during the Initial Term for Good
Reason (as defined below);
(iii) Executive's abandonment of his employment or his
resignation upon or following the expiration of the
Initial Term; or
(iv) Executive's death or Disability (as defined below).
(b) The date upon which Executive's termination of employment with
the Company occurs shall be the "Termination Date."
10. Payment upon Termination of Employment During Initial Term.
(a) If Executive's employment with the Company is terminated during
the Initial Term
(i) by reason of Executive's abandonment of his employment
or Executive's resignation (other than for Good Reason),
or
(ii) by the Company for Cause (as defined below),
the Executive will continue to be eligible to receive the Hold-Back if a Revenue
Objective has been achieved as of the Termination Date or subsequently a Revenue
Objective is achieved after the Termination Date, in both cases the Hold-Back
will be payable in accordance with the terms and conditions of Section 5(b) of
this Agreement.
(b) If Executive's employment with the Company is terminated during
the Initial Term
(i) by reason of Executive's resignation for Good Reason,
(ii) by the Company for any reason other than Cause,
(iii) due to Executive's death or Disability, or
(iv) under circumstances making Executive eligible for
payments or other benefits pursuant to the terms and
conditions of the Management Agreement,
then the Company shall pay Executive the Hold-Back within thirty (30) days of
the Termination Date, whether or not a Revenue Objective has been achieved by
the Company as of the Termination Date.
(c) "Cause" hereunder shall mean:
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(i) an act or acts of personal dishonesty taken by Executive
and intended to result in substantial personal
enrichment of Executive at the expense of the Company;
(ii) material breach by Executive of any of his obligations
under this Agreement or the Proprietary Information
Agreement, or violation of the Company's written
policies with respect to conflicts of interest, code of
conduct, or xxxxxxx xxxxxxx;
(iii) Executive's failure or refusal to perform or observe
Executive's duties, responsibilities and obligations as
an employee or officer of the Company for reasons other
than Disability;
(iv) Executive's failure to achieve each of the Revenue
Objectives for the fiscal years ending September 30,
2005, 2006 or 2007;
(v) the existence of any court or administrative order
prohibiting Executive's continued employment with the
Company;
(vi) if Executive has signed or entered into a written or
oral non-competition agreement, confidentiality
agreement, proprietary information agreement, trade
secret agreement or any other agreement which would
prevent Executive from working for the Company or from
performing Executive's duties at the Company; or
(vii) commission by Executive of illegal conduct or other
significant misconduct that is injurious to the Company,
provided, however, that "Cause" shall not exist under Section 10(c)(iii) above
unless and until (A) the Company has given written notice to Executive that his
failure or refusal constitutes Cause and (B) Executive has continued to fail or
refuse to perform or observe Executive's duties, responsibilities and
obligations as an employee or officer of the Company for 60 days following
Executive's receipt of such notice.
(d) "Disability" hereunder shall mean the inability of Executive to
perform on a full-time basis the duties and responsibilities of his position
with the Company by reason of his illness or other physical or mental impairment
or condition, if such inability continues for an uninterrupted period of 180
days or more during any 360-day period. A period of inability shall be
"uninterrupted" unless and until Executive returns to full-time work for a
continuous period of at least 30 days.
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(e) Resignation for "Good Reason" shall mean Executive's resignation
because of the occurrence of any of the following without Executive's consent:
(i) reassignment by the Company of Executive's primary work
location more than 40 miles outside the Chicago,
Illinois metropolitan area (other than for normal
business travel consistent with Executive's position);
(ii) reassignment of Executive to a position with the Company
below the level of Vice President;
(iii) reassignment of Executive to a position with the Company
in which Executive's duties and responsibilities no
longer include participation in the senior management of
the marketing consulting services business;
(iv) material reduction in Executive's Base Salary as in
effect from time to time, unless such reduction is made
as part of a general reduction in the base salaries for
all senior management of the Company; or
(v) failure of the Company to grant and deliver either the
initial stock option or restricted stock to Executive as
provided in Sections 4(c) and 4(d) of this Agreement;
provided, however, that "Good Reason" shall not exist unless and until Executive
has given written notice to the Company of the detailed basis for Good Reason
and such basis is not cured by the Company within 15 days following the
Company's receipt of such notice.
(f) In the event of termination of Executive's employment, the sole
obligation of the Company shall be its obligation to make the payments to
Executive under this Agreement and for Base Salary and benefits earned by
Executive through the Termination Date, in accordance with the Company's regular
practices and procedures. The Company shall have no other obligation to
Executive or to his beneficiary or his estate, except as otherwise provided by
law, under the terms of any other applicable written agreement between Executive
and the Company or under the terms of any employee benefit plans or programs
then maintained by the Company in which Executive participates.
11. Return of Records and Property. Upon termination of his
employment with the Company, Executive shall promptly deliver to the Company any
and all Company records and any and all Company property in his possession or
under his control, including without limitation manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, printouts, computer
disks, computer tapes, source codes, data, tables or calculations and all copies
thereof, documents that in whole or in part contain any trade
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secrets or confidential, proprietary or other secret information of the Company
and all copies thereof, and keys, access cards, access codes, passwords, credit
cards, personal computers, telephones and other electronic equipment belonging
to the Company.
12. Disputes. In the event of any dispute, controversy, or claim for
damages arising under or in connection with this Agreement, including, but not
limited to, claims for wages or compensation due; claims for breach of any
contract or covenant (expressed or implied); tort claims; claims for
discrimination; claims for benefits (except where an employee benefit or profit
sharing plan specifies that its claims procedures shall culminate in an
arbitration procedure) and claims for violation of any Federal, State or other
governmental law, statute, regulation, or ordinance, except claims for workers'
compensation or unemployment compensation benefits, Executive and the Company
mutually agree to in good faith consider the use of forms of alternative dispute
resolution, including, but not limited to, arbitration and/or mediation.
Notwithstanding the foregoing, nothing in this Agreement shall restrict either
party's ability to immediately seek injunctive relief from a court of competent
jurisdiction prior to consideration of alternative dispute resolution hereunder.
13. Miscellaneous.
(a) Governing Law. All matters relating to the interpretation,
construction, application, validity and enforcement of this Agreement shall be
governed by the laws of the State of Minnesota without giving effect to any
choice or conflict of law provision or rule, whether of the State of Minnesota
or any other jurisdiction, that would cause the application of laws of any
jurisdiction other than the State of Minnesota.
(b) Entire Agreement. This Agreement contains the entire agreement
of the parties relating to the subject matter of this Agreement and supersedes
all prior agreements and understandings with respect to such subject matter,
except for the Proprietary Information Agreement and the Management Agreement.
The parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement that are not set forth herein
or in the Proprietary Information Agreement or the Management Agreement.
(c) Amendments. No amendment or modification of this Agreement shall
be deemed effective unless made in writing and signed by the parties hereto.
(d) No Waiver. No term or condition of this Agreement shall be
deemed to have been waived, except by a statement in writing signed by the party
against whom enforcement of the waiver is sought. Any written waiver shall not
be deemed a continuing waiver unless specifically stated, shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
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(e) Assignment. This Agreement shall not be assignable, in whole or
in part, by either party without the written consent of the other party, except
that the Company may, without the consent of Executive, assign its rights and
obligations under this Agreement to any affiliate of the Company or to any
corporation or other business entity (i) with which the Company may merge or
consolidate, or (ii) to which the Company may sell or transfer all or
substantially all of its assets or capital stock. Upon such assignment by the
Company, the entity to which the assignment has been made will be "the Company"
for all purposes hereunder including this Section 13.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, and such counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
(g) Captions and Headings. The captions and paragraph headings used
in this Agreement are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement or any of the provisions
hereof.
[signature page follows]
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IN WITNESS WHEREOF, Executive and the Company have executed this
Amended Employment Agreement effective as of the date set forth in the first
paragraph.
/s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
FAIR XXXXX CORPORATION
By Xxxxxx X. Xxxx
----------------------------
Its VP, General Counsel and
Secretary
----------------------------
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