FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") is entered
into as of the 1st day of January 2005, by and between FIND/SVP, INC., a New
York corporation (the "Company") and Xxxxx Xxxxx ("Employee").
WHEREAS, the Company and the Employee are parties to an Employment
Agreement entered into as of May 13, 2002 (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 13, 2005" in Section 2.1 is deemed amended and replaced
with "December 31, 2007".
3. Section 3.1 is deemed amended in its entirety as set forth below:
3.1 (a) Employee shall receive salary for his services at the rate of
$220,000 per annum ("Base Salary"), payable in accordance with the
Company's normal payroll procedures for executive employees.
(b) On an annual basis beginning on January 1, 2006, the Company shall
review the Employee's performance and other relevant factors relating to
salary. If the Employee is employed by the Company as of January 1, 2006,
he will receive a minimum Base Salary increase of 6%. Any further salary
adjustments shall be at the discretion of the Company's Chief Executive
Officer.
(c) At the discretion of the Chief Executive Officer of the Company, and
subject to the approval of the Compensation Committee of the Board of
Directors of the Company, Employee shall be eligible to receive an annual
bonus based on performance. In addition to any other bonus(es), whether
based on performance or otherwise, that the Company may award to Employee,
the Company's bonus program shall (a) provide that Employee shall earn 25%
of Base Salary in each year of the Term if the Company achieves the
Company's (adjusted) EDITDA target, for each year of such Term, and (b)
provide that Employee shall earn 50% of Base Salary in each year of the
Term if the Company achieves 120% of the Company's EBITDA target, for each
year of such Term. The Company shall in good faith determine the EBITDA
target for each year of the Term on or prior to January 31 of such year.
(d) Employee shall also be eligible for a performance based bonus, to be
determined at the discretion of the Chief Executive Officer of the
Company. Employee's discretionary performance based bonus for 2004 shall
be $50,000.
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4. Section 3.5 is amended by replacing Section 3.5(b) in its entirety as
follows and by adding a new subparagraph 3.5(c) at the end of Section 3.5 as set
forth below:
(b) In the event that Employee (i) leaves the employment of the Company
for Good Reason (as defined in Section 2.4 of the Employment Agreement) or
(ii) is terminated by the Company without cause (as defined in Section 2.3
of the Employment Agreement) during the Term, then Employee shall be
entitled to receive (A) the compensation and benefits provided in Sections
3.1(a) and 3.3 for a period of six (6) months from the date of
termination, and (B) a lump sum payment in an amount equal to the sum of
(1) the amount of Employee's bonus that should have been paid with respect
to that part of the fiscal year in which the date of termination occurs,
absent the termination of Employee's employment, (2) Employee's actual
earned bonus for any completed fiscal year or period not theretofore paid,
and (3) the unpaid portion of any amount earned by Employee prior to the
date of such termination pursuant to any benefit program in which Employee
participated during the Term, including without limitation, any accrued
vacation pay to the extent not theretofore paid. For purposes of
calculating the amount of any partial year bonus to be awarded pursuant to
(B)(1) above, the Company's actual EBITDA through the last completed month
prior to the date of termination shall be measured against the Company's
EBITDA target prorated for the portion of such fiscal year through the
last day of the last completed month prior to the date of termination, and
for purposes of clarity, the Base Salary used to calculate any partial
year bonus award shall be the amount of Base Salary earned during the
partial year prior to the date of termination.
(c) In the event that Employee's employment by the Company is terminated
as a result of (i) the death of Employee, (ii) the incapacity of Employee
as defined in Section 2.2 of the Employment Agreement, or (iii) a
Nonrenewal Event (as defined below), then Employee shall be entitled to
receive the compensation and benefits provided for in Sections 3.1(a) and
3.3 hereof for a period of six (6) months from the date of termination.
For purposes of this Agreement, a "Nonrenewal Event" shall occur in the
event that Employee ceases to continue employment with the Company after
the expiration of the Term because the Company does not offer to continue
Employee's employment hereunder on terms that are substantially the same
as the terms contained in this Agreement.
5. Section 3 is amended by adding a new subparagraph (3.7) at the end
thereof as follows:
3.7 Executive shall be granted a total of 150,000 shares of restricted
stock (the "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 as follows: (a) 25,000 shares of Restricted
Stock at the commencement of year 1 of the Term; (b) 50,000 shares of
Restricted Stock at the commencement of year 2 of the Term; and (c) 75,000
shares of Restricted Stock at the commencement of year 3 of the Term. In
the event that the Company does not have a stock incentive plan in place
with enough shares to be granted to Employee, the Company shall use its
commercially reasonable efforts to obtain stockholder approval for a new
equity compensation plan or an amendment to an existing plan and then
grant such Restricted Stock under such plan.
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The restrictions on the award 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 year 1 of the Term, (ii) 100% on the date the Average
Closing Price exceeds four dollars ($4.00) per share in year 2 of the
Term, (iii) 100% on the date the Average Closing Price exceeds five
dollars ($5.00) per share in year 3 of the Term or (iv) the date there is
a Change of Control (as defined in Section 4) 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 hereunder
shall each be set forth in a Restricted Stock Award Agreement attached
hereto as Exhibit A.
6. Except as expressly amended by this Amendment Agreement, the Employment
Agreement shall remain in full force and effect.
7. This Amendment Agreement 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 agreement may be executed in any number of counterparts and via
facsimile, but all such counterparts will together constitute one and the same
agreement.
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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 /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx Xxxxx Xxxxx
Title: Chief Executive Officer
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