1
EXHIBIT 10.52
EXECUTIVE EMPLOYMENT AGREEMENT
Xx Xxxxxxxx
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement"), made and
entered into effective December 17, 1996, by and between Neodata Services,
Inc., a Delaware corporation (hereinafter, together with its successors,
referred to as the "Company), and Xx Xxxxxxxx (hereinafter referred to as the
"Executive").
WHEREAS, the Board of Directors of the Company believes that it is in
the best interests of the Company (i) to provide the Executive with a special
incentive to encourage the Executive to maintain the Executive's current
employment relationship with the Company in the event of a Sale of the Company
(as hereinafter defined) for a period of up to eighteen months following any
such Sale, thereby promoting the Company's stability both before and after any
Sale and (ii) to provide for certain of the obligations of the Executive to the
Company during and following the Executive's termination of the Executive's
employment relationship with the Company;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties agree as follows:
1. CERTAIN DEFINITION.
a. "ACCRUED BENEFITS" means (i) all salary earned or
accrued through the date the Executive's employment is terminated, (ii)
reimbursement for any and all monies advanced by the Executive in connection
with the Executive's employment for reasonable and necessary expenses incurred
by the Executive through the date the Executive's employment is terminated, and
(iii) all other payments and benefits to which the Executive may be entitled
under the terms of any generally applicable compensation arrangement or benefit
plan or program of the Company, including any unused vacation pay; but
excluding any severance or termination benefits.
b. "BOARD" means, so long as Holding owns all the
outstanding capital stock of the Company, the board of directors of Holding. In
all other cases, Board means the board of directors of the Company.
C. "CAUSE" means the Executive's (i) conviction of, or
plea of nolo contendere to, a felony, (ii) illegal use of drugs, (iii) material
breach of this Agreement, fraud, dishonesty in connection with the Executive's
employment, competition with the Company, Holding or their respective
Subsidiaries, unauthorized use of any trade secret or other confidential
information of the Company, Holding or their respective Subsidiaries, or
continued gross neglect of the Executive's duties or responsibilities or (iv)
failure to properly perform the Executive's duties in the reasonable judgment
of the Board. In the case of a termination for
1
2
Cause as described in clause (ii), (iii) or (iv) above, the Executive shall be
given the opportunity, during the period of not less than 30 days after the
receipt of written notice from the Company that such event constitutes Cause,
to meet with the Board to defend the Executive's acts or failures to act, prior
to termination. The company may suspend the Executive's title and authority
pending such meeting, and such suspension shall not constitute "Good Reason",
as defined below. After such meeting, the Board may rule whether the subject
conduct constituted "Cause," and the Board's determination shall be conclusive
and binding.
d. "EDS" means Electronic Data Systems Corporation, a
Texas corporation.
e. "EDS Company" means any Person in which EDS
beneficially owns more than 50% of the fully-diluted common stock.
f. "GOOD REASON" means (i) without the Executive's
written consent, any reduction, approved by the Board, in the amount of the
Executive's annual base salary or any adverse change, approved by the Board, in
the manner in which the Executive's opportunity for an annual bonus is
determined, (ii) any significant reduction, approved by the Board without the
Executive's written consent, in the aggregate value of the Executive's benefits
provided by contract with the Executive or generally available to all senior
executives of the Company (other than annual salary or bonus) as in effect from
time to time (unless such reduction is pursuant to a general change in benefits
applicable to all similarly situated employees of the Company), or (iii) any
significant reduction, approved by the Board without the Executive's written
consent, in the Executive's title, duties or responsibilities; provided,
however, that Good Reason shall not exist at any time after the Executive has
received written notice from the Company that an event has occurred
constituting Cause, unless the Board, after a meeting with the Executive,
determines that the noticed event did not constitute Cause. Notwithstanding the
above, the occurrence of any of the events described above will not constitute
Good Reason unless the Executive gives the Company written notice that such
event constitutes Good Reason, and the Company thereafter fails to cure such
event or events within 30 days after receipt of such notice.
g. "XXXXX, MUSE" means Hicks, Muse, Xxxx & Xxxxx
Incorporated, a Texas corporation, its successors and assigns, and its
affiliates and its and their respective officers, directors, and employees (and
members of their respective families and trusts for the primary benefit of such
family members), collectively.
h. "XXXXX, MUSE COMPANY" means any Person in which
Xxxxx, Muse beneficially owns more than 25% of the fully-diluted common stock
or has an unrecovered investment of $1,000,000 or more, and each Subsidiary
thereof.
i. "HOLDING" means Neodata Corporation, a Delaware
corporation which is the parent of the Company, together with its successors.
2
3
j. "MARKETABLE SECURITIES" means securities (i) of a
class or series listed or traded on the New York Stock Exchange. American Stock
Exchange, or the NASDAQ National Market System and (ii) which, as a matter of
law, shall at the time of acquisition be (or which at the date of acquisition
are legally committed to become within six months after the date of
acquisition) freely saleable in unlimited quantities by each Person acquiring
such securities to the public, either pursuant to an effective registration
statement under the Securities Act of 1933, as amended (including a current
prospectus which is available for delivery), or without the necessity of such
registration.
k. "PERSON" means any "person", within the meaning of
Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended,
including a "group" as determined thereby.
l. "PREFERRED STOCK" means the Class A Convertible
Preferred Stock, par value $0.01 per share, of Holding.
m. "SALE OF THE COMPANY" or "Sale" means the
consummation of any transaction or series of related transactions after the
date hereof whereby (i) the Company sells or otherwise transfers all or
substantially all of its assets to another Person (other than Hicks, Muse, a
Xxxxx, Muse Company, EDS, or an EDS Company), (ii) any Person (other than
Hicks, Muse, a Xxxxx, Muse Company, EDS, or an EDS Company) purchases or
otherwise acquires all or substantially all of the common stock of the Company
or Holding, (iii) the Company is merged with another corporation (a "Merger")
and the holders of the Company's fully-diluted common stock immediately prior
to such Merger hold less than 25% of the surviving corporation's fully-
diluted common stock immediately after such Merger or (iv) Holding is merged
with another corporation (a "Holding Merger") and the holders of Holding's
fully-diluted common stock immediately prior to such Holding Merger hold less
than 25% of the surviving corporation's fully-diluted common stock immediately
after such Holding Merger.
n. "SERIES 2 PREFERRED" means the Class A Convertible
Preferred Stock-Series 2, par value $0.01 per share, of Holding.
o. "SUBSIDIARY" means with respect to any Person, any
other Person of which such first Person owns or has the power to vote, directly
or indirectly, securities representing a majority of the votes ordinarily
entitled to be cast for the election of directors or other governing Persons.
2. SALE OF THE COMPANY.
In the event of a Sale of the Company:
a. The Executive, except for Good Reason, shall not
terminate the Executive's employment with the Company in such Executive's
position with the Company (or
3
4
such other position as the Board and Executive shall mutually agree to in
writing) at the time of the Sale or for a period beginning on the date of such
Sale and ending on the date which is eighteen months following the date on
which such Sale is consummated (such period to be referred to herein as the
"Retention Period"); provided, however, if the Executive terminates the
Executive's employment relationship with the Company for Good Reason during the
Retention Period, the Executive shall be deemed to have continued the
Executive's employment with the Company for the Retention Period and the
Executive shall be entitled to the Termination Benefits (as hereinafter
defined) as set forth in Section 2c. herein.
b. On the date upon which the Sale is consummated, all
options to purchase common stock of Holding and Series 2 Preferred which have
been granted to the Executive pursuant to the Neodata Corporation amended and
Restated 1990 Executive Incentive Plan and any options and stock appreciation
rights granted to the Executive under any other plan approved by the Board
shall, to the extent not previously vested, immediately vest in full.
c. In the event the Company terminates the Executive for
any reason (other than Cause) during the Retention Period, the Executive shall
be entitled to, and the Company shall be obligated to pay, the following
termination benefits (the "Termination Benefits"), which Termination Benefits
shall be the Executive's exclusive right and remedy in respect of such
termination:
(i) The Company shall pay the Executive the
Executive's Accrued Benefits, except that, for this purpose, Accrued Benefits
shall not include any entitlement to severance under any Company severance
policy generally applicable to the Company's salaried employees, it being
understood that, if the Executive is terminated during the Retention Period,
the payments under Section 2c(ii) and Section 3 of this Agreement shall be
treated as a credit against any amount owed to the Executive under any general
severance benefit; and
(ii) The Company shall pay the Executive severance
pay equal to the Executive's then current monthly base salary, payable in
accordance with the Company's regular pay schedule, for the remainder of the
Retention Period ("Salary Continuance").
d. Notwithstanding the other provisions of this Section
2, if, at any time during the Retention Period, (i) the Executive shall
terminate the Executive's Employment with the Company for any reason other than
Good Reason, (ii) the Company shall terminate the Executive for Cause or (iii)
the Executive shall cease to be employed by the Company by reason of death,
permanent disability (as defined in the Company's Board-approved disability
plan or policy, as in effect from time to time) or retirement (as defined in
the Company's Board approved retirement plan or policy, as in effect from time
to time), then the Executive shall not be entitled to any Salary Continuance,
and shall only be entitled to receive from the Company (x) in the case of
clause (i) or (ii) of this sentence, the Executive's Accrued Benefit or (y) in
the case of clause (iii) of this sentence, any applicable death, disability or
retirement benefits, as the case may be, then generally provided by the Company
to its similarly situated employees.
4
5
3. RETENTION BONUS.
a. In the event of a Sale of the Company that results in
the holders of Preferred Stock receiving, net of all selling, brokerage.
investment banking, and all related costs and expenses, upon the consummation
of the Sale, cash or Marketable Securities having a fair market value of at
least $125,000,000 in the aggregate, the Executive shall be entitled to a
retention bonus (the "Retention Bonus") in an amount equal to 100% of such
Executive's then existing base salary, payable in four installments, with 25%
being payable upon consummation of the Sale, and 25% on each of the dates six
months, twelve months, and eighteen months following such sale.
b. Notwithstanding the provisions of Section 3(a) above,
if at any time prior to the termination of the Retention Period the Executive
terminates the Executive's employment for any reason other than Good Reason or
because of the Executive's death or disability, or the Company terminates the
Executive for Cause, the Executive shall forfeit the Executive's right to any
unpaid installments of the Retention Bonus which would otherwise be due under
this Agreement.
4. LIMITATION ON OBLIGATIONS OF COMPANY.
The Company's aggregate obligations under this Agreement and all
agreements with other executives of the Company which have provisions similar
to Sections 2 and 3 hereof (whether or not dated concurrently herewith) (the
"Other Retention Agreements") with respect to all Salary Continuance and
Retention Bonus payments payable thereunder shall be subject to an aggregate
maximum dollar limitation such that the Company shall not be obligated to pay
aggregate Salary Continuances and Retention Bonuses hereunder and pursuant to
the Other Retention Agreements in an aggregate amount of more than $3,000,000.
In the event the aggregate amount that the Company would be obligated to pay in
Salary Continuances and Retention Bonuses hereunder and pursuant to the Other
Retention Agreements exceeds $3,000,000, the Salary Continuances and Retention
Bonuses payable in the aggregate hereunder and thereunder shall be reduced
ratably among the Executive and the parties to the Other Retention Agreements
in accordance with the amount of the then-existing base salary of each
individual who is a party to an executive retention agreement. Notwithstanding
anything to the contrary elsewhere herein, after the first Sale of the Company,
no further Termination Benefits, Salary Continuance or Retention Bonus shall
accrue to the Executive with respect to any subsequent Sale of the Company. Any
interpretation of the provisions of this or any other provision of this
Agreement shall be made by the Board, whose decision concerning such matters
shall be conclusive.
5. EFFECTIVENESS OF PROVISIONS.
The Company's and the Executive's rights and obligations under Section
2 and 3 of this Agreement shall vest upon the occurrence of a Sale of the
Company as defined herein, and
5
6
nothing in this Agreement shall be construed as conferring any obligations or
benefits upon the parties hereunder prior to any such Sale. Nothing contained
herein shall be deemed to obligate the Board or the Company to engage in, or
negotiate towards, a Sale. In the event the Executive is not employed by the
Company for any reason at the time of a Sale of the Company, the provisions of
Section 2 and Section 3 of this Agreement shall cease to be of any force and
effect and neither party hereto shall have any obligations or be entitled to
any benefits thereunder, and the remaining provisions of this Agreement.
including but not limited to Section 6 and Section 7, shall survive such
termination of employment and remain in full force and effect.
6. NON-COMPETITION COVENANT.
The Executive shall not, during the period in which the Executive is
employed by the Company and for the eighteen-month period immediately following
the last day of the Executive's employment by the Company (as such last day of
employment is reasonably determined by the Company's Board of Directors), (a)
unless the Executive's employment by the Company was terminated by the Company
without Cause, act as an officer, director, employee, partner, or agent of, or
invest in or lend money to, or own, directly or indirectly, any interest in, or
participate in the control of, any corporation. partnership. joint venture or
other business organization which is engaged in the sale of any product or
service which is sold by the Company from time to time in the future prior to
the end of the Executive's employment, or (b) solicit to accept or negotiate
with concerning or offer to, any person employed by the Company or whose
employment by the Company has ended less than 180 days prior thereto,
employment with any business entity with which Executive may become associated
in any capacity other than the Company.
7. CONFIDENTIAL INFORMATION OF THE COMPANY.
The Executive shall not, except in the performance of the Executive's
duties hereunder and for the benefit of the Company, disclose or reveal to any
unauthorized person any trade secrets or other confidential information of the
Company, Holding or their respective Subsidiaries relating to the Company,
Holding or their respective Subsidiaries or to any of the businesses operated
by them, and the Executive confirms that such trade secrets and confidential
information constitute the exclusive property of the Company, Holding or their
respective Subsidiaries, as the case may be.
8. REMEDIES UPON BREACH.
The Executive acknowledges that the remedy at law for a breach by the
Executive of the provisions of Sections 6 or 7 hereof will be inadequate.
Accordingly, in the event of the breach or threatened breach by the Executive
of any of the provisions of Sections 6 or 7 hereof, the Company, Holding or
their respective Subsidiaries, as the case may be, shall be entitled to
injunctive relief in addition to any other remedy to which it may be entitled.
6
7
9. SUCCESSORS.
The Company may assign its rights under this Agreement to any
successor to all or substantially all the assets of the Company, by merger or
otherwise, and may assign or encumber this Agreement and its rights hereunder
as security for indebtedness of the Company, Holding, and their respective
Subsidiaries. The rights of Executive under this Agreement may not be assigned
or encumbered by the Executive, voluntarily or involuntarily, during the
Executive's lifetime, and any such purported assignment shall be void.
10. ENFORCEMENT.
The provisions of this Agreement shall be regarded as divisible, and
if any of said provisions or any part thereof are declared invalid or
unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
11. AMENDMENT.
This Agreement may not be amended or modified at any time except by a
written instrument approved by the Board and executed by the Company and the
Executive.
12. WITHHOLDING.
The Company shall be entitled to withhold from amounts to be paid to
the Executive hereunder any federal, state, local, or foreign withholding or
other taxes of charges which it is from time to time required to withhold. The
company shall be entitled to rely on an opinion of counsel if any question as
to the amount or requirement of any such withholding shall arise.
13. GOVERNING LAW.
This Agreement and the rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of Colorado
without regard to principles of conflicts of law of the State of Colorado or
any other jurisdiction. Any dispute arising out of this Agreement shall be
determined by arbitration in Boulder, Colorado under the rules of the American
Arbitration Association then in effect and judgment upon any award pursuant to
such arbitration may be enforced in any court having jurisdiction thereof
14. NOTICE.
Notices given pursuant to this Agreement shall be in writing and shall
be deemed given when received and if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only, postage
prepaid: if to the Company, c/o Hicks, Muse, Xxxx & Xxxxx Incorporated, 000
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxx 0. Xxxxx and
Xxxxxxxx X. Xxxxxx, with a copy to Weil, Gotshal & Xxxxxx, 000 Xxxxxxxx Xxxxx,
0
0
Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: Xxxx X. Xxxxx, Esq.; or if to the
Executive, at the address set forth below the Executive's signature line of
this Agreement; or to such other address as the party to be notified shall have
given to the other in writing.
15. NO WAIVER.
No waiver by either party at any time of any breach by the other party
of, or compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at any time.
16. HEADINGS
The headings herein contained are for reference only and shall not
affect the meaning or interpretation of any provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
NEODATA SERVICES, INC.
By: /s/ XXXXX X. XXXXX
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Sr. Vice President,
Human Resources
EXECUTIVE
/s/ XX XXXXXXXX
-------------------------------------
Xx Xxxxxxxx
8
