AMENDMENT NO. 1 TO
NFO WORLDWIDE, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of November 9, 1999 by and between NFO
Worldwide, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxx
(the "Executive").
Whereas, the Executive entered into an employment agreement (the
"Original Agreement") with the Company on March 15, 1995;
Whereas the Executive and the Company desire to amend certain terms of
the Original Agreement;
In consideration of the foregoing and the respective covenants and
agreements of the parties herein contained, the parties hereto agree as follows:
A. Sections 5 (a), (b) and (c) of the Original Agreement shall be
amended and restated as follows:
5. Term.
(a) The Employment Period shall end on November 9, 2002,
provided that (i) the Employment Period shall terminate prior to such date upon
the Executive's resignation, death or permanent disability or incapacity (as
determined in good faith by the Board in its good faith judgment), (ii) the
Employment Period may be terminated by the Company at any time prior to such
date for Cause (as defined below) or without Cause, and (iii) the Employment
Period shall be extended automatically for an unlimited number of successive
three-year periods unless either the Company or the Executive gives written
notice to the other party of its or his desire not to extend the Employment
Period beyond the term of the then current Employment Period, which written
notice must be given at least 30 days prior to the date one year before the end
of the then current Employment Period.
(b) If at any time the Employment Period is terminated by the
Company without Cause, the Executive shall be entitled to receive his Base
Salary through the third anniversary of such termination, the pro rata portion
of the Annual Bonus paid to the Executive for the twelve-month period most
recently completed prior to such termination and his Annual Bonus for each of
the three years following such termination, which Annual Bonus shall be an
amount equal to the highest Annual Bonus received by the Executive during the
last five (5) fiscal years of the Company completed prior to such termination,
so long as the Executive has not materially breached the provisions of
paragraphs 6, 7 and 8 hereof. If the Company elects not to extend the Employment
Period by delivering the written notice specified in clause (a)(iii) above, the
Executive shall be entitled to receive his Base Salary and Annual Bonus through
the end of the Employment Period and shall be entitled to receive his Base
Salary and his Annual Bonus for two years following the end of the Employment
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Period, which Annual Bonus shall be an amount equal to the highest Annual Bonus
received by the Executive during the last five (5) fiscal years of the Company
completed prior to the end of the Employment Period.
(c) If the Employment Period is terminated by the Company for
Cause or is terminated pursuant to clause (a)(i) above, the Executive shall be
entitled to receive his Base Salary through the date of termination and the pro
rata portion of the Annual Bonus paid to the Executive for the twelve-month
period most recently completed prior to such termination, which Annual Bonus
shall be payable to the Executive if approved in the good faith judgment of the
Compensation Committee of the Board; provided, however, that, notwithstanding
the foregoing, if the Employment Period shall be terminated pursuant to clause
(a)(i) above either by the resignation of the Executive for "Good Reason" at any
time following a "Change in Control" of the Company, or by the Board's
determination of the Executive's permanent disability or incapacity, the
Executive shall be entitled to receive his Base Salary through the third
anniversary of such resignation and his Annual Bonus for each of the three years
following such resignation or Board determination, as the case may be, which
Annual Bonus shall be an amount equal to the highest Annual Bonus received by
the Executive during the last five (5) fiscal years of the Company completed
prior to such "Change in Control" or Board determination, as the case may be.
For purposes of this Agreement, the phrase "Change in Control"
shall mean the following and shall be deemed to have occurred if any of the
following events shall have occurred: (i) any "person" or "group" (as such terms
are used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended, (the "Exchange Act")) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act as in effect on the date hereof, except
that a person shall be deemed to be the "beneficial owner" of all shares that
any such person has the right to acquire pursuant to any agreement or
arrangement or upon exercise of conversion rights, warrants, options or
otherwise, without regard to the sixty-day period referred to in such Rule),
directly or indirectly, of securities representing 30% or more of the combined
voting power of the Company's then outstanding voting securities; (ii) at any
time during any period of two consecutive years (not including any period prior
to the execution of this Agreement), individuals who at the beginning of such
period constituted the Board and any new directors, whose election by the Board
or nomination for election by the Company's stockholders was approved by a vote
of at least two-thirds (2/3) of the Company directors then still in office who
either were the Company directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof; or (iii) the Company shall consolidate,
merge or exchange securities with any other entity. Notwithstanding the
foregoing, a Change in Control shall not be deemed to occur merely by reason of
an acquisition of Company securities by, or any consolidation, merger or
exchange of securities with, any entity that, immediately prior to such
acquisition, consolidation, merger or exchange of securities, was a
"subsidiary", as such term is defined below. For these purposes, the term
"subsidiary" means (i) any corporation of which 95% of the capital stock of such
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corporation is owned, directly or indirectly, by the Company and (ii) any
unincorporated entity in respect of which the Company has, directly or
indirectly, an equivalent degree of ownership.
For purposes of this Agreement "Good Reason" shall mean the
following and shall be deemed to have occurred if any of the following events
shall have occurred: (i) the Executive is removed from any of the positions of
Chairman, President or Chief Executive Officer, or is assigned duties and
responsibilities that are inconsistent, in a material adverse respect, with the
scope of duties and responsibilities associated with the Executive's positions
as Chairman, President or Chief Executive Officer; (ii) the Company fails to pay
the Executive any amounts otherwise due hereunder; (iii) the Executive's Base
Salary is reduced or his Fringe Benefits are reduced; or (iv) the Executive's
principal office is relocated outside of Greenwich, Connecticut without his
consent; provided, in any such case, that the Executive has notified the Company
in writing of the basis for claiming his entitlement to resign from his
employment for Good Reason and the Company has failed to cure such condition
within 10 days following the receipt of such notice from the Executive.
B. Capitalized Terms. Capitalized terms utilized herein and not
otherwise defined shall have the meanings assigned to them in the Original
Agreement.
C. Notices. Any notice or communication required or permitted hereunder
shall be in writing and shall be delivered by certified, registered or express
mail, postage prepaid. Any such notice shall be deemed given when so delivered
as follows:
(i) If to the Company, to:
NFO Worldwide, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(ii) If the Executive, to the Executive in care of the
Company at the above address, with a copy to the Executive at his then-current
residence.
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Any party may change its address for notices hereunder by notice to the
other parties in accordance with this Section C.
D. Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Connecticut applicable to agreements
made and to be performed entirely within such state.
E. Entire Agreement; Amendments and Waivers. Except to the extent
modified hereby, the Original Agreement remain in full force and effect. The
parties do not intend to confer any benefit hereunder on any third person, and,
without limiting the generality of the foregoing, the parties may, in writing,
without notice to or consent of any third person, at any time waive any rights
hereunder or amend this Agreement in any respect or terminate this Agreement. If
either party should waive any breach of any provision of this Agreement, such
party will not thereby be deemed to have waived any preceding or succeeding
breach of the same provision or any breach of any other provision of this
Agreement.
F. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
G. Assignment. This Agreement, and any rights and obligations
hereunder, may not be assigned by any party hereto without the prior written
consent of the other party.
H. Headings. Section headings are inserted herein for convenience only
and do not constitute a part, and shall not affect the interpretation, of this
Agreement.
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I. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
NFO WORLDWIDE, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
