AMENDED AND RESTATED SENIOR MANAGEMENT AGREEMENT BY AND BETWEEN HURON CONSULTING GROUP INC. AND GARY E. HOLDREN
Exhibit
10.1
AMENDED
AND RESTATED
BY
AND BETWEEN
AND
XXXX
X. XXXXXXX
|
1.
|
EMPLOYMENT
|
1
|
|
|
1.1
|
Title
and Duties
|
1
|
|
|
1.2
|
Outside
Activity
|
2
|
|
|
1.3
|
Employment
Period
|
2
|
|
|
1.4
|
Termination
Upon Death
|
2
|
|
|
1.5
|
Termination
by the Company.
|
2
|
|
|
1.6
|
Resignation
by the Executive
|
3
|
|
|
2.
|
COMPENSATION
|
4
|
|
|
2.1
|
Base
Salary
|
4
|
|
|
2.2
|
Annual
Bonus
|
5
|
|
|
2.3
|
Equity
Awards
|
5
|
|
|
3.
|
RESTRICTED
STOCK UNIT AWARD
|
5
|
|
|
4.
|
REPRESENTATIONS
AND COVENANTS OF THE EXECUTIVE
|
5
|
|
|
4.1
|
Enforceability
of Agreement
|
5
|
|
|
4.2
|
Restrictions
on Sales
|
5
|
|
|
5.
|
BENEFITS
AND EXPENSES
|
6
|
|
|
5.1
|
Benefit
Plans
|
6
|
|
|
5.2
|
Retiree
Medical
|
6
|
|
|
5.3
|
Life
Insurance
|
6
|
|
|
5.4
|
Expenses
|
6
|
|
|
6.
|
COMPENSATION
AFTER TERMINATION
|
7
|
|
|
6.1
|
Termination
for Cause; Resign without Good Reason
|
7
|
|
|
6.2
|
Severance
|
7
|
|
|
6.3
|
Death
or Disability
|
7
|
|
|
6.4
|
Change
of Control
|
8
|
|
|
6.5
|
Rights
Following Termination
|
11
|
|
|
7.
|
RESTRICTIVE
COVENANTS
|
11
|
|
|
7.1
|
The
Executive’s Acknowledgment
|
11
|
|
|
7.2
|
Confidential
Information
|
12
|
|
|
7.3
|
Non-Disclosure
|
12
|
|
|
7.4
|
Non-Solicitation
of Clients
|
12
|
|
|
7.5
|
Non-Interference
with Relationships
|
13
|
|
|
|
7.6
|
Noncompetition
|
13
|
|
7.7
|
Modification
|
13
|
|
|
7.8
|
Duty
of Loyalty
|
13
|
|
|
8.
|
EFFECT
ON TERMINATION
|
13
|
|
|
9.
|
REMEDIES.
|
14
|
|
|
9.1
|
Non-Exclusive
Remedy for Restrictive Covenants
|
14
|
|
|
9.2
|
Arbitration
|
14
|
|
|
9.3
|
Legal
Fees
|
14
|
|
|
9.4
|
Interest
|
14
|
|
|
10.
|
MISCELLANEOUS
|
15
|
|
|
10.1
|
General
Release
|
15
|
|
|
10.2
|
Assignment
|
15
|
|
|
10.3
|
Severability
|
15
|
|
|
10.4
|
Counterparts
|
15
|
|
|
10.5
|
Descriptive
Headings; Interpretation
|
15
|
|
|
10.6
|
Notices
|
15
|
|
|
10.7
|
Indemnification
|
16
|
|
|
10.8
|
Liability
Insurance
|
16
|
|
|
10.9
|
Preamble;
Preliminary Recitals
|
16
|
|
|
10.10
|
Taxes
|
16
|
|
|
10.11
|
Entire
Agreement
|
16
|
|
|
10.12
|
Governing
Law
|
16
|
|
|
10.13
|
No
Strict Construction
|
17
|
|
|
10.14
|
Amendment
and Waivers
|
17
|
|
|
10.15
|
Code
Section 409A
|
17
|
|
|
Exhibit A
-
|
Restricted
Stock Award
|
A-1
|
|
AMENDED
AND RESTATED
AMENDED
AND RESTATED SENIOR MANAGEMENT AGREEMENT (the “Agreement”),
effective as of January 29, 2007 (the “Effective
Date”),
by
and between Huron Consulting Group Inc., a Delaware corporation (the
“Company”),
and
Xxxx X. Xxxxxxx (the “Executive”).
Preliminary
Recitals
A. WHEREAS,
the Company and its affiliates are engaged in the business of providing
diversified business consulting services, including financial and operational
consulting services (the “Business”)
and
B. WHEREAS,
Huron Consulting Services LLC (formerly known as Huron Consulting Group LLC
(“Consulting”))
and
the Executive previously entered into a Senior Management Agreement effective
as
of May 13, 2002, as amended by a First Amendment to Senior Management
Agreement effective as of January 1, 2004 and subsequently amended by a
Second Amendment to Senior Management Agreement effective as of the closing
of
the Company’s initial public offering (collectively, such Senior Management
Agreement, First Amendment and Second Amendment are referred to as the
“Prior
Agreement”);
C. WHEREAS,
the Company currently employs the Executive and desires to continue to employ
the Executive from and after the Effective Date, and the Executive desires
to
continue to be so employed by the Company, as set forth herein.
NOW,
THEREFORE, in consideration of the premises, the mutual covenants of the parties
hereinafter set forth and other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
1. Employment.
1.1 Title
and Duties.
The
Company agrees to continue to employ the Executive, and the Executive agrees
to
accept such continuing employment with the Company, as its Chief Executive
Officer and President, for the Employment Period (defined below), in accordance
with the terms and conditions of this Agreement. The Executive shall also serve
as Chief Executive Officer and President of Consulting during the Employment
Period, in accordance with the terms and conditions of this Agreement. During
the Employment Period, the Executive shall (a) have such responsibilities,
duties and authorities as are customarily assigned to such positions and shall
render such services or act in such capacity for the Company and its affiliates
as the Board of Directors of the Company (the “Board”)
shall
from time to time direct, and (b) shall report to the Board. The Executive
shall perform the duties and carry out the responsibilities assigned to him,
to
the best of his ability, in a trustworthy and businesslike manner for the
purpose of advancing the business of the Company and its affiliates. The
Executive shall engage in travel as reasonably required in the performance
of
the Executive’s duties.
1.2 Outside
Activity.
During
the Employment Period, and excluding any periods of vacation and sick leave,
the
Executive shall devote substantially all of his business time and attention
to
the business and affairs of the Company and its affiliates. It shall not
be a
violation of this Agreement for the Executive (a) with the consent of the
Board, which consent shall not be unreasonably withheld, to serve on corporate,
civic or charitable boards or committees, (b) to deliver lectures, fulfill
speaking engagements or teach occasional courses or seminars at educational
institutions, or (c) to manage personal investments, so long as such
activities under clauses (a), (b) and (c) do not interfere, in any substantial
respect, with the Executive’s responsibilities hereunder.
1.3 Employment
Period.
The
employment of the Executive under this Agreement shall continue from the
Effective Date and shall continue through the fifth (5th) anniversary of
the
Effective Date (the “Initial
Period”).
Commencing on the fifth (5th) anniversary of the Effective Date and on each
anniversary thereafter (each a “Renewal
Date”),
the
employment of the Executive under this Agreement shall automatically renew
and
extend for an additional year, unless one of the parties shall deliver to
the
other advance written notice of the cessation of such automatic renewal
(“Nonrenewal
Notice”)
at
least sixty (60) days prior to such Renewal Date. “Employment
Period”
shall
mean the Initial Period and any automatic extensions of the Executive’s
employment under this Agreement. Notwithstanding anything to the contrary
contained herein, the Employment Period shall terminate on the date the
Executive’s employment with the Company and its affiliates terminates pursuant
to and in accordance with the terms of Section 1.4,
1.5
or
1.6.
1.4 Termination
Upon Death.
If the
Executive dies during the Employment Period, the Executive’s employment shall
automatically terminate on the date of the Executive’s death.
1.5 Termination
by the Company.
(a) The
Company may terminate the Executive’s employment hereunder upon written notice
to the Executive (i) due to the Permanent Disability of the Executive,
(ii) for Cause, or (iii) without Cause for any or no reason. Such
termination shall be effective upon the date of service of such notice pursuant
to Section 10.6
or such
later date specified in the notice (which later date shall not be more than
sixty (60) days following the date on which the notice is provided).
(b) Definition
of Cause.
(i) For
the
purpose of this Agreement, “Cause”
means
the occurrence of any of the following events:
(1) the
Executive’s conviction of any felony or of a misdemeanor involving fraud,
dishonesty, or moral turpitude;
(2) the
Executive’s material breach, material non-performance or material non-observance
of any of the terms of the Agreement or any other written agreement to which
the
Executive and the Company or any of its affiliates are parties, if such breach,
non-performance or non-observance shall continue beyond a period of twenty
(20)
days immediately after written notice thereof by the Company to the Executive
or
if such breach, non-performance or non-observance results in financial detriment
to the Company or its affiliates or a detrimental effect on the business
or
reputation of the Company or its affiliates;
B-2
(3) the
Executive’s misconduct that results in material financial detriment to the
Company or its affiliates or a material detrimental effect on the business
or
reputation of the Company or its affiliates; or
(4) any
breach, non-performance or non-observance of Section 7.2,
7.3,
7.4,
7.5,
or
7.6
of this
Agreement.
(ii) Cause
shall be determined by the affirmative vote of at least 75% of the members
of
the Board (excluding the Executive, if a Board member, and excluding any
member
of the Board involved in events leading to the Board’s consideration of
terminating the Executive for Cause). The Executive shall be given twenty
(20)
days written notice of the Board meeting at which Cause shall be decided
(which
notice shall be deemed to be notice of the existence of Cause if Cause is
found
to exist by the Board), and shall be given an opportunity prior to the vote
on
Cause to appear before the Board, with or without counsel, at the Executive’s
election, to present arguments on his own behalf. The notice to the Executive
of
the Board meeting shall include a description of the specific reasons for
such
consideration of Cause. The pendency of the notice period described herein
shall
not prevent or delay the Company’s ability to enforce the restrictive covenants
contained herein.
(c) The
Executive shall be deemed to have a “Permanent
Disability”
for
purposes of this Agreement if the Executive has any medically determinable
physical or mental impairment that has lasted for a period of not less than
six
(6) months in any 12 month period and that renders the Executive unable to
perform the duties required under the Agreement. Such determination shall
be
made by written certification (“Certification”)
of the
Executive’s Permanent Disability by a physician jointly selected by the Company
and the Executive; provided that if the Company and the Executive cannot
reach
agreement on the physician, the Certification shall be by a panel of physicians
consisting of one physician selected by the Company, one physician selected
by
the Executive and a third physician jointly selected by those two physicians.
1.6 Resignation
by the Executive.
(a) The
Executive shall give sixty (60) days written notice to the Company prior
to the
effectiveness of any resignation of his employment with the Company.
(b) The
Executive’s resignation shall be a resignation for “Good
Reason”
if:
(1) an event or condition occurs which constitutes any of (c)(i) through
(v) below; (2) the Executive provides the Company with written notice
pursuant to Section 10.6
that he
intends to resign for Good Reason and such written notice includes (A) a
designation of at least one of (c)(i) through (v) below (the “Designated
Section”)
and
(B) specifically describes the events or conditions the Executive is
relying upon to satisfy the requirements of the Designated Section(s);
(3) as of the twentieth (20th) day following the Company’s receipt of such
written notice from the Executive, such events or conditions have not been
corrected in all material respects; and (4) the Executive’s resignation is
effective within sixty (60) days after the date on which the Executive first
has
actual knowledge of the occurrence of the first event or condition upon which
the Executive relies upon to satisfy any of the Designated Section(s).
B-3
(c) “Good
Reason”
shall
mean the occurrence of any of the following without the express written consent
of the Executive:
(i) any
material breach of the Agreement by the Company;
(ii) any
material adverse change in status, position or responsibilities described
in
Section 1.1 or any reduction in Base Salary (as defined below) of the Executive
(it being understood and agreed that, (1) following a Change of Control (as
defined below), the fact that the Executive is not named as Chief the Executive
Officer of the ultimate parent entity surviving the Change of Control shall
constitute Good Reason, (2) the appointment of a lead director of the Board
shall not constitute Good Reason (provided that Executive continues to report
to
the full Board), and (3) a reduction in Base Salary in accordance with Section
2.1 shall not constitute Good Reason);
(iii) assignment
of duties to the Executive that are materially inconsistent with the Executive’s
position and responsibilities described in this Agreement;
(iv) the
failure of the Company to assign this Agreement to a successor to the Company
or
failure of a successor to the Company to explicitly assume and agree to be
bound
by this Agreement; or
(v) requiring
the Executive to be principally based at any office or location more than
fifty
(50) miles from the current offices of the Company in Chicago,
Illinois.
2. Compensation.
2.1 Base
Salary.
As
consideration for the services of the Executive hereunder, from January 1,
2007
and continuing during the Employment Period, the Company shall pay the Executive
an annual base salary of one million one hundred thousand dollars ($1,100,000)
(the “Base
Salary”),
payable in accordance with the Company’s customary payroll practices as in
effect from time to time. For each of the calendar years beginning on January
1,
2008 through January 1, 2011, the Base Salary shall be increased in increments
of $50,000. In addition, the Board shall perform an annual review of the
Executive’s compensation based on the Executive’s performance of his duties and
the Company’s other compensation policies, provided that the Executive’s Base
Salary, as increased from time to time, shall not be reduced without the
Executive’s written consent unless such reduction is part of a comparable
overall reduction for members of senior management. The term “Base
Salary”
shall
include any changes to the Base Salary from time to time.
B-4
2.2 Annual
Bonus.
For
each calendar year during the Employment Period beginning with the calendar
year
commencing on January 1, 2007, the Executive shall be eligible for an annual
bonus in an amount determined by the Board, in accordance with the applicable
annual bonus plan in effect from time to time, based on the Executive’s
performance of his duties and the Company’s other compensation policies (the
“Annual
Bonus”).
The
target annual bonus for the Executive’s Annual Bonus shall be 100% of Base
Salary (the “Target
Amount”)
per
year. The Executive’s right to any Annual Bonus payable pursuant to this
Section 2.2
shall be
contingent upon the Executive being employed by the Company on the last day
of
the performance period to which the bonus relates. For each performance period
commencing on or after the Effective Date, the amount of the Annual Bonus
target
will be established by the Board as set forth above and shall be payable
based
upon the Executive’s achieving certain performance goals, with such performance
goals, each to be set and approved by the Board no later than the ninetieth
(90th) day of the performance period to which such Annual Bonus
relates.
2.3 Equity
Awards.
The
Board and the Executive shall discuss periodic grants of Company equity to
the
Executive upon the achievement of certain defined
corporate milestones.
3. Restricted
Stock Unit Award.
Subject
to the terms of that certain restricted stock unit agreement between the
Executive and the Company dated of even date herewith (the “Restricted
Stock Unit Agreement”)
and
attached hereto as Exhibit A (which Restricted Stock Unit Agreement has been
approved by the Compensation Committee of the Board), and subject to the
terms
of the Huron Consulting Group Inc. 2004 Omnibus Stock Plan, the Executive
has
been granted, effective as of the Effective Date, two hundred fifty thousand
(250,000) restricted share units (the “Units”).
As a
condition to receipt of the Units, the Executive shall complete and execute
such
documents as the Company may require.
4. Representations
and Covenants of the Executive.
4.1 Enforceability
of Agreement.
This
Agreement constitutes the legal, valid and binding obligation of the Executive
enforceable in accordance with its terms, and the execution, delivery and
performance of this Agreement by the Executive and all other agreements
contemplated hereby to which he is a party, and the fulfillment and compliance
with the respective terms hereof and thereof, do not and shall not conflict
with, violate or cause a breach of the terms, conditions or provisions of,
or
require the consent of any other person under, any agreement, non-compete
provision, contract or instrument to which the Executive is a party or any
judgment, order, decree or other obligation to which the Executive is subject.
4.2 Restrictions
on Sales.
Except
as otherwise agreed by the Company in writing, the Executive agrees that
he will
sell, distribute, or otherwise transfer any shares of Company common stock
owned
by him only in accordance with the provisions of Rule 144 under the Securities
Act of 1933 whether or not such provision is applicable to the Executive.
This
Section 4(b) shall survive termination of this Agreement.
B-5
5. Benefits
and Expenses.
5.1 Benefit
Plans.
During
the Employment Period, the Executive shall be eligible to participate in
the
various health and welfare benefit plans and other generally applicable programs
and policies maintained by the Company for its key management employees from
time to time.
5.2 Retiree
Medical.
If the
Executive is continuously employed through the fifth anniversary of the
Effective Date, or if his employment terminates prior to that date due to
the
Executive’s death, Permanent Disability of Executive, by the Company without
Cause or by the Executive for Good Reason, he and/or his spouse (determined
as
of the Effective Date) shall be eligible to continue (beyond any period of
continuation of coverage otherwise provided under this Agreement) medical,
dental and vision coverage made available by the Company, from time to time,
to
other senior executives of the Company until they each attain age
65.
As an
alternative to the foregoing, the Company, in its sole discretion, may make
any
or all of such coverages available to the Executive and and/or his spouse
through the purchase of one or more insurance policies which provide coverage
that is comparable to the applicable coverages provided by the Company to
its
senior executives. The Executive and/or his spouse shall be required to pay
the
full cost of any such coverages that are continued pursuant to this Section
5.2.
To the extent applicable and to the extent permitted by law, any continuing
coverages provided to the Executive and/or his spouse pursuant to this Section
5.2 shall be considered part of, and not in addition to, any coverage required
under section 4980B of the Internal Revenue Code of 1986, as amended (the
“Code”),
or
sections 601-607 of the Employee Retirement Income Security Act of 1974,
as
amended, commonly referred to as “COBRA”.
5.3 Life
Insurance.
The
Company shall use its commercially reasonable efforts to obtain, and pay
the
premium on, a policy of life insurance on the life of the Executive (the
“Life
Policy”).
The
Life Policy shall provide benefits in the event that the Executive’s employment
with the Company terminates during the Employment Period due to death in
an
amount equal to the sum of the Executive’s (a) Base Salary as in effect for the
year of his death and (b) then-prevailing Target Amount for the year of the
termination (the “Target
Bonus”).
Any
death benefits payable under the Life Policy shall be payable to the Executive’s
beneficiary, as designated from time to time by the Executive. The Executive
agrees to cooperate with the Company in obtaining the Life Policy and in
keeping
the Life Policy in force during the Employment Period.
5.4 Expenses.
During
the Employment Period, the Company shall reimburse the Executive for all
ordinary, necessary and reasonable travel and other business expenses incurred
by the Executive in connection with the performance of his duties hereunder,
in
accordance with the Company policy. Such reimbursement shall be made upon
presentation of itemized expense statements and such other supporting
documentation as the Company may reasonably require.
B-6
6. Compensation
After Termination.
6.1 Termination
for Cause; Resign without Good Reason.
If the
Executive’s employment is terminated by the Company for Cause or if the
Executive resigns other than for Good Reason, then, except as required by
law,
the Company shall pay the Executive, within thirty (30) days following
termination, the Executive’s Base Salary accrued through the date of said
termination and his earned but unpaid bonus, if any.
6.2 Severance.
(a) If,
during the Employment Period, the Executive’s employment is terminated by the
Company without Cause or if the Executive resigns for Good Reason, then:
(i) the
Executive will be entitled to receive as severance pay, an amount in cash
equal
to the sum of the Executive’s (1) Base Salary as in effect for the year in which
the termination occurs and (2) Target Bonus, payable
in substantially equal installments pursuant to the Company’s normal payroll
schedule for the Executive during the twelve (12) month period commencing
with
the date of termination,
(ii) the
vesting of all of the Executive’s outstanding equity grants shall accelerate, if
needed, so that one hundred percent (100%) of such equity shall be
vested,
(iii) the
Executive shall be entitled to receive continuation of medical and dental
benefits during the twelve (12)-month period beginning on the Executive’s
termination date upon substantially the same terms and conditions as in effect
immediately prior to the termination of employment, which benefits shall
be
considered part of, and not in addition to, any coverage required under COBRA,
and
(iv) all
other
benefits and perquisites shall be subject to the terms of the plan or program
through which the benefit or perquisite is provided to the Executive.
(b) For
the
avoidance of doubt, the parties hereto agree that delivery by the Company
of a
Notice of Nonrenewal shall not be considered an event of Good Reason or a
termination by the Company for Cause.
(c) The
compensation and benefits described in this Section 6.2
shall be
in lieu of compensation and benefits provided otherwise for a termination
under
any other plan or agreement of the Company (other than Section 6.3 or 6.4
hereof, if applicable), whether adopted before or after the date hereof,
which
provides severance or termination payments or benefits.
6.3 Death
or Disability.
If the
Executive’s employment is terminated due to the Executive’s Permanent Disability
or the Executive’s death, then:
B-7
(a) if
the
Executive’s termination of employment occurs on account of Permanent Disability,
the Executive shall be entitled to receive as severance pay an amount in
cash
equal to the sum of the Executive’s (i) Base Salary as in effect for the year in
which the termination occurs and (ii) Target Bonus, payable
in substantially equal installments pursuant to the Company’s normal payroll
schedule for the Executive during the twelve (12) month period commencing
with
the date of termination,
(b) the
vesting of all of the Executive’s outstanding equity shall accelerate, if
needed, so that one hundred percent (100%) of such equity shall be vested,
(c) the
Executive shall be entitled to receive continuation of medical benefits upon
substantially the same terms and conditions as in effect immediately prior
to
the termination of employment for the six (6) month period immediately following
the termination of employment, which benefits shall be considered part of,
and
not in addition to, any coverage required under COBRA, and
(d) all
other
benefits and perquisites shall be subject to the terms of the plan or program
through which the benefit or perquisite is provided to the Executive.
6.4 Change
of Control.
(a) The
provisions of Section
6.2
hereof to the contrary notwithstanding, if (i) the Executive’s employment
is terminated by the Company without Cause or the Executive resigns for Good
Reason in either case during the period commencing on a Change of Control
(defined below) and ending on the second anniversary of the Change of Control
(such two-year period being the “Protection
Period”
hereunder), or (ii) the Executive reasonably demonstrates that the
Company’s termination of the Executive’s employment (or event which, had it
occurred following a Change of Control, would have constituted Good Reason)
prior to a Change of Control was at the request of a third party who was
taking
steps reasonably calculated to effect a Change of Control (or otherwise in
contemplation of a Change of Control) and a Change of Control actually occurs,
(each a “Qualifying
Termination”),
then
the Executive shall be entitled to receive: (A) an amount in cash equal to
the Executive’s Target Bonus multiplied by a fraction, the numerator of which is
the number of completed days (including the date of termination) during the
year
of termination and the denominator of which is 365, (B) an amount in cash
equal to three (3) times the sum of the Executive’s Base Salary as in effect for
the year of termination and his Target Bonus, and (C) continuation of
medical benefits until
the
third anniversary of the date of such termination (or such earlier date on
which
the Executive or his covered dependent(s) obtain other medical coverage)
upon
substantially the same terms in effect for the Executive immediately prior
to
the termination date, which benefits shall be considered part of, and not
in
addition to, any coverage required under COBRA.
(b) Payments
and benefits under Section
6.4(a)
shall
not be subject to mitigation or offset.
B-8
(c) All
of
the Executive’s outstanding equity grants that were awarded at any time shall
fully vest upon the occurrence of a Qualifying Termination.
(d) The
compensation and benefits described in Section 6.4(a)
and
6.4(b)
shall be
in lieu of compensation and benefits provided otherwise for a termination
under
Section 6.2
of this
Agreement and any other plan or agreement of the Company, whether adopted
before
or after the date hereof, which provides severance payments or benefits.
(e) If
it is
determined that any amount, right or benefit paid or payable (or otherwise
provided or to be provided) to the Executive by the Company or any of its
affiliates under this Agreement or any other plan, program or arrangement
under
which the Executive participates or is a party, other than amounts payable
under
this Section 6.4(e)
(collectively, the “Payments”),
would
constitute an “excess
parachute payment”
within
the meaning of Section 280G of the Code, subject to the excise tax imposed
by
Section 4999 of the Code, as amended from time to time (the “Excise
Tax”),
then
the Executive shall be entitled to receive an additional payment from the
Company (a “Gross-Up
Payment”)
in an
amount such that, after payment by the Executive of all taxes (including
any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income and employment taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment
(and any interest and penalties imposed with respect thereto), the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax (including
any
interest and penalties imposed with respect thereto) imposed upon the Payments.
All
determinations required to be made under this Section 6.4(e),
including whether and when a Gross-Up Payment is required, the amount of
such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by an independent, nationally recognized accounting
firm mutually acceptable to the Company and the Executive (the “Auditor”).
The
Auditor shall promptly provide detailed supporting calculations to both the
Company and the Executive following any determination that a Gross-Up Payment
is
necessary. All fees and expenses of the Auditor shall be paid by the Company.
Any Gross-Up Payment, as determined pursuant to this Section 6.4(e),
shall
be paid by the Company to the Executive within 5 days of the receipt of the
Auditor’s determination. All determinations made by the Auditor shall be binding
upon the Company and the Executive; provided that if, notwithstanding the
Auditor’s initial determination, the Internal Revenue Service (or other
applicable taxing authority) determines that an additional Excise Tax is
due
with respect to the Payments, then the Auditor shall recalculate the amount
of
the Gross-Up Payment based upon the determinations made by the Internal Revenue
Service (or other applicable taxing authority) after taking into account
any
additional interest and penalties (the “Recalculated
Amount”)
and
the Company shall pay to the Executive the excess of the Recalculated Amount
over the Gross-Up Payment initially paid to the Executive within 5 days of
the
receipt of the Auditor’s recalculation of the Gross-Up Payment.
B-9
(f) For
the
purposes of this Section 6.4,
the
term “Change
of Control”
shall
be deemed to have occurred upon the first to occur of any event set forth
in any
one of the following paragraphs of this Section 6.4(f):
(i) any
Person becomes the Beneficial Owner, directly or indirectly, of common stock
or
voting securities of the Company (not including in the amounts beneficially
owned by such Person any common stock or voting securities acquired directly
from the Company or its Affiliates representing 40% or more of the combined
voting power of the Company’s then outstanding securities; or
(ii) there
is
consummated a merger or consolidation of the Company or any direct or indirect
subsidiary of the Company with any Person, other than (a) a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior to such merger or consolidation continuing
to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof) at least 50% of
the
combined voting power of the securities of the Company or such surviving
entity
or any parent thereof outstanding immediately after such merger or
consolidation, (b) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person
other than existing security holders is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
amount Beneficially Owned by such Person any common stock or voting securities
acquired directly from the Company or its Affiliates) representing 50% or
more
of the combined voting power of the Company’s then outstanding securities, or
(c) a merger or consolidation of a subsidiary of the Company that does not
represent a sale of all or substantially all of the assets of the Company;
or
(iii) the
shareholders of the Company approve a plan of complete liquidation or
dissolution of the Company (except for a plan of liquidation or dissolution
effected to implement a recapitalization of the Company addressed in (ii)
above); or
(iv) there
is
consummated an agreement for the sale or disposition of all or substantially
all
of the assets of the Company to a Person, other than a sale or disposition
by
the Company of all or substantially all of the assets of the Company to an
entity, at least 50% of the combined voting power of the voting securities
of
which are owned by shareholders of the Company.
Notwithstanding
the foregoing, a “Change of Control” shall not be deemed to have occurred
by virtue of the consummation of any transaction or series of integrated
transactions immediately following which the record holders of the common
stock
of the Company immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in an entity
which owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.
B-10
For
purposes of this Change of Control definition, (A) “Beneficial
Owner”
shall
have the meaning set forth in Rule 13d-3 under the Exchange Act,
(B) “Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended from time to time,
(C) “Person”
shall
have the meaning given in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof, except that such term shall
not include (1)the Company or any of the Company’s direct or indirect
subsidiaries, (2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or the Company or any of their Affiliates,
(3) an underwriter temporarily holding securities pursuant to an offering
of such securities, or (4) a corporation owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as
their
ownership of stock of the Company and (D) “Affiliate”
shall
have the meaning set forth in Rule 12b-2 promulgated under Section 12 of
the Exchange Act.
6.5 Rights
Following Termination.
Following any termination described in this Section 6,
the
Company shall continue to have all other rights available hereunder (including,
without limitation, all rights under the Restrictive Covenants contained
in
Section 7 of this Agreement and any restrictive covenants set forth in any
plan,
award and agreement applicable to the Executive, at law or in
equity).
7. Restrictive
Covenants.
7.1 The
Executive’s Acknowledgment.
The
Executive agrees and acknowledges that in order to assure the Company that
it
will retain its value and that of the Company and its affiliates as a going
concern, it is necessary that the Executive not utilize special knowledge
of the
Company and its affiliates and their relationships with customers to compete
with the Company and its affiliates. The Executive further acknowledges that:
(a) the
Company and its affiliates are and will be engaged in the Business during
the
Employment Period and thereafter;
(b) the
Executive will occupy a position of trust and confidence with the Company
and
its affiliates, and during the Employment Period (and during any period of
continued employment or service after the Employment Period), the Executive
will
become familiar with the trade secrets of the Company and its affiliates
and
with other proprietary and Confidential Information (defined below) concerning
the Company, its affiliates and the Business and any other businesses in
which
the Company or its affiliates engage during the Executive’s employment with the
Company (the “Covered
Businesses”);
(c) the
agreements and covenants contained in Sections 7,
8
and
9
are
essential to protect the Company and its affiliates and the goodwill of the
Covered Businesses and compliance with such agreements and covenants will
not
impair the Executive’s ability to procure subsequent and comparable employment;
and
(d) the
Executive’s employment with the Company has special, unique and extraordinary
value to the Company and the Company and its affiliates would be irreparably
damaged if the Executive were to provide services to any person or entity
in
violation of the provisions of this Agreement.
B-11
7.2 Confidential
Information.
As used
in this Section 7,
“Confidential
Information”
shall
mean the trade secrets of the Company and its affiliates and other non-public
information relating to the Company, its affiliates or the Covered Businesses,
including, without limitation, information relating to financial statements,
customer identities, potential customers, employees, suppliers, acquisition
targets, servicing methods, equipment, programs, strategies and information,
analyses, marketing plans and strategies, profit margins and other information
developed or used by the Company or its affiliates in connection with the
Covered Businesses that is not known generally to the public or the industry
and
that gives the Company or its affiliates an advantage in the marketplace.
Confidential Information shall not include any information that is in the
public
domain or becomes known in the public domain through no wrongful act on the
part
of the Executive. The Executive agrees to deliver to the Company at the
termination of the Executive’s employment (whether at the end of the Employment
Period or thereafter), or at any other time the Company may request, all
memoranda, notes, plans, records, reports and other documents (and copies
thereof) relating to the Covered Businesses, the Company or its affiliates
or
other forms of Confidential Information which the Executive may then possess
or
have under his control.
7.3 Non-Disclosure.
The
Executive agrees that during employment with the Company (including employment
following the Employment Period) and thereafter, the Executive shall not
reveal
to any competitor or other person or entity (other than current employees
of the
Company) any Confidential Information regarding Clients (as defined herein)
that
the Executive obtains while performing services for the Company or its
affiliates. The Executive further agrees that the Executive will not use
or
disclose any Confidential Information, other than in connection with the
Executive’s work for the Company, until such information becomes generally known
in the industry through no fault of the Executive.
7.4 Non-Solicitation
of Clients.
The
Executive acknowledges that the Executive will learn and develop Confidential
Information relating to the Clients and relating to the Company’s servicing of
those Clients. The Executive recognizes that the relationships of the Company
and its affiliates with the Clients are extremely valuable to them and that
the
protection of the relationships of the Company and its affiliates with the
Clients is essential.
Accordingly,
and in consideration of the Company’s employment of the Executive and the
various benefits and payments provided in conjunction therewith, the Executive
agrees that while he is employed by the Company and for a period of twenty-four
(24) months following termination of employment with the Company (whether
at the
end of the Employment Period or thereafter) unless otherwise mutually agreed
in
writing by the Executive and the Company, the Executive will not, whether
or not
the Executive is then self-employed or employed by another, directly or through
another, provide services that are the same or similar to those services
offered
for sale and/or under any stage of development by the Company at the time
of the
Executive’s termination, to any Client.
“Client”
shall
mean those persons or firms for whom the Company or any of its affiliates
has
either directly or indirectly provided services within the twenty-four
(24)-month period immediately preceding termination of the Executive’s
employment (whether at the end of the Employment Period or thereafter) and
therefore includes both the referral source or entity that consults with
the
Company or any of its affiliates and the entity to which the consultation
related. “Client”
also
includes those persons or firms to whom the Company or any of its affiliates
has
submitted a proposal (or assisted in the submission of a proposal) to perform
services during the six (6) month period immediately preceding termination
of
the Executive’s employment.
B-12
7.5 Non-Interference
with Relationships.
The
Executive shall not directly or indirectly solicit, induce or encourage
(a) any executive or employee of the Company or any of its affiliates, or
(b) any customer, Client, supplier, lender, professional advisor or other
business relation of the Company or any of its affiliates to leave, alter
or
cease his or her relationship with the Company or any of its affiliates,
for any
reason whatsoever, for (1) thirty six (36) months (in the case of clause
(a)) and (2) twenty-four (24) months (in the case of clause (b)) after the
Executive’s termination of employment with the Company (whether at the end of
the Employment Period or thereafter) for any reason. The Executive shall
not
hire or assist in the hiring of any executive or employee of the Company
or any
of its affiliates for that same time period, whether or not the Executive
is
then self-employed or employed by another business. The Executive shall not
directly or indirectly make disparaging remarks about the Company, any of
its
affiliates or any executive or employee of the Company or any of its affiliates,
or any customer, client, supplier, lender, professional advisor or other
business relation of the Company or any of its affiliates.
7.6 Noncompetition.
While
the Executive is employed by the Company, and for a period of twenty-four
(24)
months after the Executive’s termination of employment with the Company (whether
at the end of the Employment Period or thereafter) for any reason, the Executive
agrees that he will not directly or indirectly engage in, assist, perform
services for, establish or open, or have any equity interest (other than
ownership of 5% or less of the outstanding stock of any corporation listed
on
any securities exchange) in any person, firm, corporation, or business entity
(whether as an employee, officer, director, agent, security holder, creditor,
consultant, or otherwise) that engages in the Covered Businesses; provided,
however, that for any periods after the Executive’s termination of employment
with the Company, the Covered Businesses shall include only those businesses
that were Covered Businesses at the time of the Executive’s termination of
employment.
7.7 Modification.
If any
court of competent jurisdiction shall at any time deem that the term of any
Restrictive Covenant is too lengthy, or the scope or subject matter of any
Restrictive Covenant exceeds the limitations imposed by applicable law, the
parties agree that provisions of Sections 7.3,
7.4,
7.5
and
7.6
shall
be amended to the minimum extent necessary such that the provision is
enforceable or permissible by such applicable law and be enforced as amended.
The provisions of this Section 7
shall
survive the end of the Employment Period and the termination of this Agreement.
7.8 Duty
of Loyalty.
Nothing
in this Section
7
shall be
construed as limiting the Executive’s duty of loyalty to the Company while he is
employed by the Company, or any other duty he may otherwise have to the Company
while he is employed by the Company.
8. Effect
on Termination.
If, for
any reason, the Executive’s employment with the Company shall terminate or the
Agreement is not renewed pursuant to Section 1.3
above,
then, the Agreement (and the Employment Period) shall terminate; provided,
however, notwithstanding such termination, the provisions contained in
Sections 7,
9,
and
10
hereof
shall remain in full force and effect in accordance with their terms.
B-13
9. Remedies.
9.1 Non-Exclusive
Remedy for Restrictive Covenants.
The
Executive acknowledges and agrees that the covenants set forth in Section 7
of this
Agreement (collectively, the “Restrictive
Covenants”)
are
reasonable and necessary for the protection of the business interests of
the
Company and its affiliates, that irreparable injury will result to the Company
and its affiliates if the Executive breaches any of the terms of the Restrictive
Covenants, and that in the event of the Executive’s actual or threatened breach
of any such Restrictive Covenants, the Company and its affiliates will have
no
adequate remedy at law. The Executive accordingly agrees that in the event
of
any actual or threatened breach by him of any of the Restrictive Covenants,
the
Company and/or its affiliates shall be entitled to immediate temporary
injunctive and other equitable relief, without the necessity of showing actual
monetary damages or the posting of a bond. Nothing contained herein shall
be
construed as prohibiting the Company or any of its affiliates from pursuing
any
other remedies available to it for such breach or threatened breach, including
the recovery of damages.
9.2 Arbitration.
Except
as set forth in Section 9.1,
any
controversy or claim arising out of or related to (i) this Agreement,
(ii) the breach thereof, (iii) the Executive’s employment with the
Company or the termination of such employment, or (iv) Employment
Discrimination, shall be settled by arbitration in Chicago, Illinois before
a
single arbitrator administered by the American Arbitration Association
(“AAA”)
under
its Commercial Arbitration Rules and Mediation Procedures, amended as of
September 15, 2005 (the “Employment
Rules”),
and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. References herein to any arbitration rule(s)
shall
be construed as referring to such rule(s) as amended or renumbered from time
to
time and to any successor rules. References to the AAA include any successor
organization. “Employment
Discrimination”
means
any discrimination against or harassment of the Executive in connection with
the
Executive’s employment with the Company or the termination of such employment,
including any discrimination or harassment prohibited under federal, state
or
local statute or other applicable law, including the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Employee
Retirement Income Security Act of 1974, the Americans with Disability Act,
the
Family and Medical Leave Act, the Fair Labor Standards Act, or any similar
federal, state or local statute.
9.3 Legal
Fees.
The
Company shall reimburse the Executive for attorney fees incurred by the
Executive in connection with the negotiations of this Agreement and related
agreements in an amount not to exceed $30,000, which reimbursement shall
upon
presentation by the Executive of documentation of such expenses and such
reimbursement shall occur no later than March 15, 2008.
9.4 Interest.
If, in
breach of this Agreement, the Company does not pay any amount that becomes
due
to the Executive under this Agreement within five business days after written
notice that such amount is due and owing, interest shall accrue on such amount
from the date it became due and owing until the date of payment at an annual
rate equal to the prime rate as publicly announced by The Northern Trust
Company
or its successor in effect from time to time during the period of such
nonpayment.
B-14
10. Miscellaneous.
10.1 General
Release.
The
Executive acknowledges and agrees that the Executive’s right to receive
severance pay and other benefits pursuant to Sections 6.2,
6.3
and
6.4
of this
Agreement is contingent upon the Executive’s compliance with the covenants set
forth in Section 7
of this
Agreement and the Executive’s execution and acceptance of the terms and
conditions of, and the effectiveness of, a general release in the standard
form
used by the Company at the time of the Executive’s termination of employment.
(the “Release”).
If the
Executive fails to comply with the covenants set forth in Section 7
or if
the Executive fails to execute the Release or revokes the Release during
the
seven (7)-day period following his execution of the Release, then the Executive
shall not be entitled to any severance payments or other benefits to which
the
Executive would otherwise be entitled under Section 6.2,
6.3
or
6.4
(collectively, the“Severance
Benefits”).
10.2 Assignment.
The
Executive may not assign any of his rights or obligations hereunder without
the
written consent of the Company. Except as otherwise expressly provided herein,
all covenants and agreements contained in this Agreement by or on behalf
of any
of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
10.3 Severability.
Whenever possible, each provision of this Agreement shall be interpreted
in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable
law,
such provision shall be ineffective only to the extent of such prohibition
or
invalidity and without invalidating the remainder of this Agreement.
10.4 Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one
and the
same Agreement.
10.5 Descriptive
Headings; Interpretation.
The
descriptive headings in this Agreement are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement. The use of the word “including”
in
this
Agreement shall be by way of example rather than by limitation.
10.6 Notices.
All
notices, demands or other communications to be given or delivered under or
by
reason of the provisions of this Agreement shall be in writing and shall
be
deemed to have been duly given if (a) delivered personally to the
recipient, (b) sent to the recipient by reputable express courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid, or (c) transmitted by
telecopy to the recipient with a confirmation copy to follow the next day
to be
delivered by overnight carrier. Such notices, demands and other communications
shall be sent to the addresses indicated below:
B-15
| To the Company: | Huron Consulting Group Inc. |
| 000 X. Xxx Xxxxx | |
| Xxxxxxx, XX 00000 | |
| Attention: General Counsel | |
| Facsimile: (000) 000-0000 | |
| To the Executive: | Xxxx X. Xxxxxxx |
| At the current home address and/or current home | |
| facsimile number for the Executive in the Company’s records. |
or
to
such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
Date of
service of such notice shall be (w) the date such notice is personally
delivered, (x) three days after the date of mailing if sent by certified or
registered mail, (y) one day after the date of delivery to the overnight
courier if sent by overnight courier or (z) the next business day after the
date of transmittal by telecopy.
10.7 Indemnification.
The
Company hereby agrees to indemnify the Executive and hold him harmless, to
the
fullest lawful extent permitted by, and subject to the limitations and
conditions set forth in, the Company's Third Amended and Restated Certificate
of
Incorporation and bylaws, as such exist on the date hereof and regardless
of any
subsequently enacted bylaw or amendment.
10.8 Liability
Insurance.
The
Company shall cover the Executive, while employed by the Company and during
the
six (6) year period commencing with the Executive’s date of termination, under
directors and officers liability insurance in the same amount and to the
same
extent as the Company covers any other officer or director of the Company,
provided that the Company shall not be required to provide such coverage
following termination of the Executive’s employment if providing such coverage
to the Executive would cause the Company’s cost of directors and officers
liability insurance to be increased by more than 15% and provided further
that,
the Company shall not be required to provide such coverage in the event that
the
Executive’s employment is terminated for Cause or if, prior to the third
anniversary of the Effective Date, the Executive terminates his employment
without Good Reason.
10.9 Preamble;
Preliminary Recitals.
The
Preliminary Recitals set forth in the Preamble hereto are hereby incorporated
and made part of this Agreement.
10.10 Taxes.
All
compensation payable to the Executive from the Company shall be subject to
all
applicable withholding taxes, normal payroll withholding and any other amounts
required by law to be withheld.
10.11 Entire
Agreement.
Except
as otherwise expressly set forth herein, this Agreement sets forth the entire
understanding of the parties, and supersedes and preempts all prior oral
or
written understandings and agreements with respect to the subject matter
hereof,
including, without limitation, the Prior Agreement.
10.12 Governing
Law.
This
Agreement shall be construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and performance of
this
Agreement shall be governed by, the laws of the State of Illinois without
giving
effect to provisions thereof regarding conflict of laws.
B-16
10.13 No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen
by the
parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any party hereto. Neither the Executive
nor
the Board shall be entitled to any presumption in connection with any
determination made hereunder in connection with any arbitration, judicial
or
administrative proceeding relating to or arising under this Agreement.
10.14 Amendment
and Waivers.
Any
provisions of the Agreement may be amended or waived only with the prior
written
consent of the Company and the Executive.
10.15 Code
Section 409A.
Notwithstanding anything in this Agreement to the contrary, the Company shall
administer and construe this Agreement in accordance with Code Section 409A,
the
regulations promulgated thereunder, and any other published interpretive
authority, as issued or amended from time to time, so as not to subject the
Executive to the additional tax and interest imposed under Code Section 409A.
To
the extent that the Company and/or the Executive reasonably determine that
any
amount payable under this Agreement would trigger the additional tax imposed
by
Section 409A, the Company and the Executive shall promptly agree in good
faith
on appropriate modifications to the Agreement (including delaying or
restructuring payments) to avoid such additional tax yet preserve (to the
nearest extent reasonably possible) the intended benefit payable to the
Executive.
SIGNATURE
PAGE FOLLOWS.
B-17
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
dates
written below.
| Date: | January 29, 2007 | THE COMPANY: | ||
| HURON CONSULTING GROUP INC. | ||||
| /s/ Xxxx X. Xxxxx | ||||
| By: Xxxx X. Xxxxx | ||||
| Its: Chairperson of the Compensation | ||||
| Committee of the Board of Directors | ||||
| EXECUTIVE | ||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Xxxx X. Xxxxxxx |
B-18
Exhibit
A
2004
OMNIBUS STOCK PLAN
RESTRICTED
STOCK UNIT AGREEMENT
This
RESTRICTED STOCK UNIT AGREEMENT (this “Restricted
Stock Unit Agreement")
is
made and entered into as of January 29, 2007 (the “Date
of Grant”),
by
and between Huron Consulting Group Inc., a Delaware corporation (the
“Company”)
and
Xxxx X. Xxxxxxx (the “Recipient”).
WHEREAS,
the Company and the Recipient are parties to that certain Amended and Restated
Senior Management Agreement dated as of even date herewith (the “SMA”);
and
WHEREAS,
the Compensation Committee of the Board of Directors of the Company has approved
the grant of Restricted Stock Units pursuant to the Huron Consulting Group
Inc.
2004 Omnibus Stock Plan (the “Plan”)
to the
Recipient as set forth below (which award shall constitute a grant of Phantom
Stock within the meaning of the Plan);
NOW,
THEREFORE, in consideration of the covenants and agreements herein contained,
and intending to be legally bound hereby, the parties agree as
follows:
1. Definitions.
Capitalized terms which are not defined herein shall have the meaning set
forth
in the Plan.
2. Grant
of Restricted StockUnits.
The
Company hereby grants to the Recipient 250,000 restricted stock units (the
“Restricted
Stock Units”),
subject to all of the terms and conditions of this Restricted Stock Unit
Agreement. The Recipient’s grant details, including the number of Restricted
Stock Units granted, vesting schedule and expiration date, are reflected
in the
Recipient’s UBS Financial Services Inc. stock account.
3. Vesting
and Forfeiture of Units.
All
Restricted Stock Units shall be unvested unless and until they become vested
and
nonforfeitable in accordance with this Section 3. Except as otherwise provided
below, if the Recipient is employed by the Company or any of its affiliates
(collectively, “Huron”)
as of
the applicable “Anniversary
Date”
set
forth below, the Restricted Stock Units shall become vested and nonforfeitable
according to the percentage set forth opposite such date:
|
Anniversary
Date
|
Cumulative
Percentage Vested
|
|
February
1, 2008
January
1, 2009
January
1, 2010
January
1, 2011
January
1, 2012
|
20%
40%
60%
80%
100%
|
Notwithstanding
the foregoing provisions of this Section 3, all of the Restricted Stock Units
that have not otherwise vested in accordance with the foregoing provisions
of
this Section 3 shall become vested and nonforfeitable in accordance with
the
following:
| (a) |
Death
or Permanent Disability.
The
Restricted Stock Units shall become fully vested if the Recipient’s
employment with Huron terminates on account of his death or Permanent
Disability (as defined in the SMA).
|
| (b) |
Certain
Terminations.
The
Restricted Stock Units shall become fully vested and nonforfeitable
if the
Recipient’s employment with Huron is terminated by Huron for reasons other
than for “Cause” (as defined in the SMA) or by the Recipient for “Good
Reason” (as defined in the SMA).
|
| (c) |
Change
of Control.
The
Restricted Stock Units shall become fully vested and nonforfeitable
upon a
Change of Control (as defined in the
SMA).
|
Any
Restricted Stock Units that are not otherwise vested and nonforfeitable upon
the
Recipient’s termination of employment with Huron shall be immediately forfeited
and the Recipient shall have no further rights to, under or with respect
to such
Restricted Stock Units.
4. Settlement.
Restricted Stock Units that have become vested in accordance with Section
3
shall be settled as of the “Settlement
Date”
which
shall be the latest of (a) the date on which the Recipient’s employment with
Huron terminates for any reason, (b) the earliest date following the Recipient’s
termination of employment on which settlement can occur without violating
the
requirements of section 409A of the Code, or (c) the earliest date on which
the
Company reasonably anticipates that its deduction with respect to the
Recipient’s compensation from the settlement will not be limited or eliminated
by application of section 162(m) of the Code. Settlement of the vested
Restricted Stock Units on the Settlement Date shall be made in the form of
shares of Company Stock (with one share of Company Stock
2
distributed
for each vested Restricted Stock Unit)
registered in the name of the Recipient. The shares of Company Stock distributed
in settlement of the Restricted Stock Units may, at the request of the
Recipient, may be evidenced by stock certificates which shall be delivered
to
Recipient within five (5) business days of such request.
5. Restrictions
on Transfer.
The
Recipient may not sell, assign, pledge or transfer, other than by the laws
of
descent or distribution, his Restricted Stock Units or any rights under or
with
respect to the Restricted Stock Units and the rights of the Recipient with
respect to the Restricted Stock Units shall not be subject to the claims
of
creditors of the Recipient other than the Company.
6. Rights
as a Stockholder.
The
Recipient shall not be a stockholder of the Company until the shares of Company
Stock issued in settlement of the Restricted Stock Units are registered in
his
name in accordance with the terms of this Restricted Stock Unit
Agreement.
7. Notices.
Any
notice required or permitted under this Restricted Stock Unit Agreement shall
be
deemed given when delivered personally, or when deposited in a United States
Post Office, postage prepaid, addressed, as appropriate, to the Company at
its
principal offices, to the Recipient at the Recipient’s address as last known by
the Company or, in either case, such other address as one party may designate
in
writing to the other.
8. Securities
Laws Requirements.
The
Company may require as a condition of distribution of any shares of Company
Stock in settlement of the Restricted Stock Units that the Recipient furnish
a
written representation that he or she is holding the shares of Company Stock
for
investment and not with a view to resale or distribution to the public.
9. Protections
Against Violations of Restricted Stock Unit Agreement.
No
purported sale, assignment, mortgage, hypothecation, transfer, pledge,
encumbrance, gift, transfer in trust (voting or other) or other disposition
of,
or creation of a security interest in or lien on, any of the Restricted Stock
Units by any holder thereof in violation of the provisions of this Restricted
Stock Unit Agreement shall be valid. The Restricted Share Units do not
constitute shares of Company Stock unless and until the shares of Company
Stock
issued in settlement of the Restricted Stock Units are registered in his
name in
accordance with the terms of this Restricted Stock Unit Agreement and the
Recipient shall not, as a result of this Restricted Stock Unit Agreement,
be a
stockholder of the Company. The foregoing restrictions are in addition to
and
not in lieu of any other remedies, legal or equitable, available to enforce
said
provisions.
3
10. Taxes.
The
Recipient understands that he or she (and not the Company) shall be responsible
for any tax obligations that may arise as a result of the transactions
contemplated by this Restricted Stock Unit Agreement and shall pay to the
Company the amount determined by the Company to be such tax obligation at
the
time such tax obligation arises. If the Recipient fails to make such payment,
the number of shares of Company Stock necessary to satisfy the tax obligations
shall be withheld from any distribution in settlement of Restricted Stock
Units
and shall be used to satisfy the Recipient’s tax obligations. Without limiting
the generality of the foregoing, (a) the Company has the right to withhold
any
shares of Company Stock to satisfy any applicable withholding taxes required
by
law, to the extent that the Company determines it is required to do so by
law,
and (b) the Recipient agrees to pay to the Company (and hereby authorizes
the
Company to withhold from other amounts that are otherwise payable to him
from
the Company if he fails to make such payment), the amount of the Recipient’s
portion of any required employment taxes (e.g., FICA and Medicare taxes)
that
are due upon the vesting of all or any portion of the Restricted Stock Units,
which payment shall be made at such time specified by the Company in order
to
enable the Company to meet its legal obligations with respect to such payments.
11.
Failure to Enforce Not a Waiver.
The
failure of the Company to enforce at any time any provision of this Restricted
Stock Unit Agreement shall in no way be construed to be a waiver of such
provision or of any other provision hereof.
12. Governing
Law.
This
Restricted Stock Unit Agreement shall be governed by and construed according
to
the laws of the State of Delaware without regard to its principles of conflict
of laws.
13. Amendments.
Except
as provided in Section 17, this Restricted Stock Unit Agreement may be amended
or modified at any time only by an instrument in writing signed by each of
the
parties hereto.
14. Survival
of Terms.
This
Restricted Stock Unit Agreement shall apply to and bind the Recipient and
the
Company and their respective permitted assignees and transferees, heirs,
legatees, executors, administrators and legal successors.
15. Agreement
Not a Contract for Services.
Neither
the grant of Restricted Stock Units, this Restricted Stock Unit Agreement
nor
any other action taken pursuant to this Restricted Stock Unit Agreement shall
constitute or be evidence of any agreement or understanding, express or implied,
that the Recipient has a right to continue to provide services as an officer,
director, employee or consultant of the Company for any period of time or
at any
specific rate of compensation.
4
16. Severability.
If a
provision of this Restricted Stock Unit Agreement is held invalid by a court
of
competent jurisdiction, the remaining provisions will nonetheless be enforceable
according to their terms. Further, if any provision is held to be over broad
as
written, that provision shall be amended to narrow its application to the
extent
necessary to make the provision enforceable according to applicable law and
enforced as amended.
17. Plan.
The
Restricted Stock Units are granted pursuant to the Plan, and the Restricted
Stock Units and this Restricted Stock Unit Agreement are in all respects
governed by the Plan and subject to all of the terms and provisions thereof,
whether such terms and provisions are incorporated in this Restricted Stock
Unit
Agreement by reference or are expressly cited.
18. Execution
of Award Agreement.
The
Restricted Stock Units granted to Recipient pursuant to this Restricted Stock
Unit Agreement shall be subject to Recipient’s execution and return of this
Restricted Stock Unit Agreement to the Company or its designee (including
by
electronic means).
19. Section
409A of the Code.
Notwithstanding anything in this Restricted Stock Unit Agreement to the
contrary, the Company shall administer and construe this Agreement in good
faith
in accordance with section 409A of the Code, the regulations promulgated
thereunder, and any other published interpretive authority, as issued or
amended
from time to time, so as not to subject the Recipient to the additional tax
and
interest imposed under section 409A of the Code. To the extent that the Company
and/or the Recipient reasonably determine that any amount payable under this
Restricted Stock Unit Agreement would trigger the additional tax imposed
by
Section 409A, the Company and the Recipient shall promptly agree in good
faith
on appropriate modifications to this Restricted Stock Unit Agreement (including
delaying or restructuring payments) to avoid such additional tax yet preserve
(to the nearest extent reasonably possible) the intended benefit payable
to the
Executive.
Notwithstanding the foregoing, the Company does not guarantee any tax treatment
of payments made pursuant to the provisions of this Restricted Stock Unit
Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Restricted
Stock Unit Agreement on January 29, 2007.
5
| Date: | January 29, 2007 | THE COMPANY: | ||
| HURON CONSULTING GROUP INC. | ||||
| /s/ Xxxx X. Xxxxx | ||||
| By: Xxxx X. Xxxxx | ||||
| Its: Chairperson of the Compensation | ||||
| Committee of the Board of Directors | ||||
| EXECUTIVE | ||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Xxxx X. Xxxxxxx |
6
