FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.4
FIRST
AMENDMENT TO
THIS
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the
“Amendment”) is entered into as of the 21st
day of
July, 2005, (and effective as of June 30, 2005), by and between FIND/SVP,
INC.,
a New York corporation (the “Company”) and Xxxx Xxxxxxxxx
(“Employee”).
WHEREAS,
the
Company and the Employee are parties to an Employment Agreement entered into
as
of April 28, 2004 (the “Employment Agreement”); and
WHEREAS,
the
Company and the Employee now desire to amend and modify certain terms and
provisions of the Employment Agreement.
NOW
THEREFORE,
for
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Defined
Terms; Section References.Any
capitalized term used, but not defined, in this Amendment shall have the
meaning
given thereto in the Employment Agreement. All section references herein
refer
to the applicable section of the Employment Agreement.
2. The
date
“May 16, 2005” in Section 2.1 is deemed amended and replaced with “June 30,
2007.”
3. Section
3.1 is deemed amended in its entirety as set forth below:
3.1 (a) For
the
year ending June 30, 2006, Employee shall receive salary for his services
at the
rate of $255,000 per annum (“Base Salary”), payable
in accordance with the Company’s normal payroll procedure for executive
employees. On
July
1, 2006 and on July 1 of any subsequent Renewal Term, unless otherwise agreed
to
in writing, Employee's Base
Salary
shall be
equal to at least the prior year’s Base
Salary
plus (i)
the percentage increase in the consumer price index for all urban consumers
in
the New York metropolitan area during the prior twelve months multiplied
by (ii)
the prior year's base salary.
(b) In
addition to the Employee’s Base Salary, the Employee will be eligible to receive
incentive compensation as follows:
(i) Bonus
target of 35% of Base
Salary
for
calendar year 2005 upon the achievement of 100% of corporate EBITDA targets
($.10 per share after bonus payouts), and 75% of Base
Salary
for
calendar year 2005 upon the achievement of 120% of corporate EBITDA
targets.
(ii) Bonus
target of 35% of Base
Salary
for
calendar year 2006 upon the achievement of 100% of corporate EBITDA targets
($.10 per share after bonus payouts), and 75% of Base
Salary
for
calendar year 2006 upon the achievement of 120% of corporate EBITDA
targets.
(iii) An
automobile allowance of $500.00 per month.
1
4. Section
3.5 is deemed amended in its entirety as set forth below:
(a) In
the
event the Employee's employment by the Company is terminated for "cause"
pursuant to Section 2.1(c) hereof, or by virtue of Section 2.1(d) hereof
because
the Employee voluntarily leaves the employ of the Company, the Employee shall
be
entitled to (i) the compensation provided for by Section 3.1(a) hereof, and
(ii)
compensation accrued pursuant to Section 3.1(b) hereof, in each case only
up
until the date of termination of his employment.
(b) In
the
event the Employee's employment by the Company is terminated by the Company
without cause, by the Employee for Good Reason, or as a result of a Nonrenewal
Event or a Third Year Nonrenewal Event, the Employee (or his estate in the
event
such termination is due to the death of the Employee or the Employee dies
subsequent to such termination) shall be entitled to receive (i) the
compensation provided for in Section 3.1(a) hereof as may be adjusted upward
and
without taking into effect any Cash Compensation Reductions (as defined below)
for the Severance Period (as defined herein) and (ii) any monies due and
owing
to the Employee pursuant to Section 3.1(b), provided that any benefit under
Section 3.1(b)(ii) hereof shall only be provided for the Severance Period
(collectively, the “Severance Benefit”). Subsequent to the Employee’s separation
from employment, should the Company discover that the Employee had violated
Section 2.1(c) or Section 4 hereof, the Company shall not pay, and Employee
shall not be entitled to receive, any portion of the Severance Benefit. The
“Severance Period” shall be a period of twelve (12) months from the date of
termination.
For
purposes of this Agreement, a “Third Year Nonrenewal Event” shall occur in the
event that the Employee ceases to continue employment with the Company after
the
expiration of the Renewal Term because the Company does not offer to continue
the Employee’s employment hereunder for a fourth year on terms that are
substantially the same as the terms contained in this Agreement, provided,
however, that the cash compensation offered by the Company may be reduced
(a
“Cash Compensation Reduction”) pro rata (but in no event less than 90% of the
cash compensation provided hereunder) to the same extent that a majority
of the
members of the Company’s OMG shall also agree to accept a cash compensation
reduction.
5. Section
3.6 is amended by amending subsection 3.6(c) in its entirety and by adding
a new
subparagraph 3.6(d) at the end thereof as follows:
(c) Effective
as of July 1, 2005, the Company will grant to the Employee 50,000 shares
of
Restricted Stock under the Company’s 2003 Stock Incentive Plan (the “Plan”) or
such other similar stock plan that the Company may have in place at the time,
at
an exercise price of $.01 per share.
The
restricted stock shall vest as follows: (i) 100% on the date the Average
Closing
Price exceeds three dollars and twenty five cents ($3.25) per share in the
first
year after grant of the award, (ii) 100% on the date the Average Closing
Price
exceeds four dollars ($4.00) per share in the second year after grant of
the
award or (iii) the date there is a Change of Control of the Company. For
purposes of this Agreement, “Average Closing Price” shall mean the average
closing price of the Company’s common stock quoted on the NASDAQ System or such
other exchange where the Company’s common stock may be traded for fifteen (15)
consecutive trading days. The number of shares granted and the target share
price shall be adjusted for changes in the common stock as outlined in Section
18.1 of the Plan or as otherwise mutually agreed in writing between the parties.
The terms of the Restricted Stock granted under this subsection shall be
set
forth in a Restricted Stock Award Agreement attached hereto as Exhibit
C.
2
For
the
purpose of this Agreement, a "Change of Control" shall mean the acquisition
by
any person, entity or "group," within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act") (excluding,
for this purpose, Employee, any group (as defined above) of which Employee
is a
member, the Company or its subsidiaries, or any employee benefit plan of
the
Company or its subsidiaries which acquires beneficial ownership of voting
securities of the Company) of beneficial ownership (within the meaning of
Rule
13d-3 promulgated under the Exchange Act) of more than 50% of either the
then
outstanding shares of common stock of the Company or the combined voting
power
of the Company's then outstanding voting securities entitled to vote generally
in the election of directors.
(d) Effective
as of July 1, 2006, the Employee shall be awarded a minimum of 50,000 shares
of
Restricted Stock having terms and conditions substantially similar to the
Restricted Stock described in (c) above.
6. Except
as
expressly amended by this Amendment, the Employment Agreement shall remain
in
full force and effect.
7. This
Amendment shall be governed by, and construed in accordance with the laws
of the
state of New York applicable to contracts executed, and to be fully performed,
in such state.
8. This
Amendment may be executed in any number of counterparts and via facsimile,
but
all such counterparts will together constitute one and the same
agreement.
3
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment
as of the day and year first written above.
|
COMPANY:
|
EMPLOYEE
|
|
|
FIND/SVP,
INC.
By:
/s/ Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Chief Executive Officer
|
/s/ Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxx
|
4
EXHIBIT
C
5
